Costilla Estates Dev. Co. v. Mascarenas.

• Decision Date: 07 November 1927
• Docket Number: No. 3149.,3149.
• Citation: 267 P. 74,33 N.M. 356
• Parties: COSTILLA ESTATES DEVELOPMENT CO.v.MASCARENAS.
• Court: New Mexico Supreme Court

33 N.M. 356

267 P. 74

COSTILLA ESTATES DEVELOPMENT CO.

v.MASCARENAS.

No. 3149.

Supreme Court of New Mexico.

Nov. 7, 1927.Rehearing Denied April 30, 1928.

Syllabus by the Court.

A judgment of a court of competent jurisdiction, upon the merits of a controversy, is conclusive between the parties and those in privity with them, upon every question of fact directly in issue, determined in the action. Jahren v. Butler, 20 N. M. 119, 147 P. 280, followed.

An issue of fact raised by allegations of an answer in the nature of a counterclaim, denied by the reply, and adjudged, is res adjudicata as to parties and privies.

A former judgment, unappealed from, relied on as res adjudicata, cannot be attacked for misjoinder of causes or of parties.

Stipulation, referred to in decree relied on as res adjudicata, is not essential part of judgment roll, at least where decree is complete in itself and requires no explanation.

Error in rejecting plaintiff's evidence in ejectment suit requires new trial, though such evidence, if received, would have required direction of verdict for plaintiff.

On Motion For Rehearing.

Record proof of change of venue examined and held conclusive.

Court clerk's signature by rubber stamp to indorsement of filing paper in cause not prohibited by general principles nor by Code 1915, § 1401.

Appeal from District Court, Taos County; Kiker, Judge.

Ejectment by the Costilla Estates Development Company against Clemente R. Mascarenas. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Former judgment, unappealed from, relied on a res judicata, cannot be attacked for misjoinder of causes.

Lindsey & Larwill, of Denver, Colo., and Renehan & Gilbert, of Santa Fé, for appellant.

E. P. Davies, of Santa Fé, for appellee.

WATSON, J.

Appellant sued appellee, on November 16, 1915, in ejectment, for two small parcels of land situated within the New Mexico portion of the Sangre de Cristo Grant. Appellee, by answer, denied the allegations of the complaint, set up title in himself by adverse possession, and prayed that such title be quieted as against appellant's adverse claims. Appellant, by reply, denied the affirmative allegations of the answer, and, by specific allegations, set up a certain judgment rendered in the district court of Santa Fé county, November 17, 1905, on change of venue from Taos county, as a former adverse adjudication of appellee's claim to title or right of possession.

At the trial, appellant offered in evidence the judgment roll in the former case. The court refused to receive it, and appellant was compelled to rest its case without such proof. Thereupon appellee's motion for a directed verdict against appellant on the ejectment issue was sustained.

While numerous specific errors have been assigned, the decision of the appeal, as counsel agree, depends upon the correctness of the ruling of the trial court, excluding the judgment roll.

[1] It is not questioned that Jahren v. Butler, 20 N. M. 119, 147 P. 280, laid down the correct rule, in quoting from 24 Cyc. 765. as follows:

“A judgment of a court of competent jurisdiction, upon the merits of a controversy, is conclusive between the parties and those in privity with them, upon every question of fact directly in issue, determined in the action.”

[2] Appellee does not question the proof that he was a party plaintiff in the former case, nor that appellant's predecessor in interest was a party defendant therein. He does not question that the particular small tracts involved in the case at bar are included within the outboundaries of the larger tract, the title to which was, in the earlier case, quieted in appellant's predecessor in interest as against the claims of appellee. He does not question that the judgment of 1905, by its terms, did assume to quiet the title to a large tract, including the lands here in question, as against any claim of appellee individually and in severalty thereto. He does contend, however, that such was not the issue in the former case.

The pleading, entitled “Amended Declaration,” and sometimes referred to as the “Second Amended Complaint,” alleged that numerous plaintiffs, including appellee, were on February 1, 1903, and continuously thereafter, as tenants in common, entitled to the immediate possession of certain described land (the New Mexico portion of the Sangre de Cristo Grant), that on said date the defendants, including appellant's predecessor in interest, entered, unlawfully withheld, and still unlawfully withheld, the same from the plaintiffs; alleged adverse possession of such lands by the plaintiffs for the statutory period; and prayed for process, for judgment, and to be let into possession. So it is contended by appellee the only issue was the right of possession of all the plaintiffs, as tenants in common, of all the land, and that the individual claims of the plaintiffs to separate holdings were not involved.

But appellant points to the second amended answer which, besides denying essential allegations of the “amended declaration,” made numerous allegations of new matter upon which it based a claim for affirmative relief, and prayed for a decree “that it is the owner and in the possession * * * of all of the land described in said complaint, and each and every portion thereof, free and clear from the claims of any of the plaintiffs * * * and that the title to said land be quieted and confirmed in said the Costilla Land & Investment Company, and that the plaintiffs herein, and each and every of them, * * * either individually or collectively, be restrained and forever enjoined from setting up, asserting, claiming, suing for, or demanding any right, title, estate, claim, or demand in or to the land described in said complaint, or any part or portion thereof. * * *”

Among the allegations of new matter supporting the said prayer is this:

“* * * That the defendant is now the owner and in the possession and entitled to the possession of all the land in said complaint described, and each and every part and portion thereof, save and except that * * * the plaintiffs herein, or certain ones of them, have taken unlawful possession of small parts and portions of said land, holding the same in severalty and not in common, and wrongfully withholding the possession thereof from * * * the Costilla Land & Investment Company as owner thereof.”

Replying to this allegation, plaintiff said:

“* * * They deny that the defendant, the Costilla Land & Investment Company, is now the owner, or entitled to the possession or in the possession, of said premises or of any portion thereof, except as alleged in plaintiffs' complaint; and plaintiffs further deny that they or any of them have taken unlawful possession of any part or portion of said premises, and they deny that they wrongfully withhold the possession of said premises or any portion thereof from the defendants or from any of them.”

So appellant contends that the issue made by the answer and reply included the several holdings, rights, and claims of the plaintiffs, and supports the judgment quieting title as against them.

[3] Appellee contends that the attempt by the answer to inject, and by the decree to adjudicate, the issues as to the holdings or claims of the plaintiffs in severalty, is contrary to the provisions of our Code as to joinder of parties and of causes. Be that as it may, the issues seem to have been presented and decided without objection. The judgment, however erroneous it may have been, is a final judgment, not appealed from. The procedural objections now urged are among those for which demurrer lies. Code 1915, § 4110. They are among those which, not being raised, are to be deemed waived. Code 1915, § 4114.

It seems plain, therefore, that the exclusion of the judgment roll cannot be sustained on the ground that the issue formerly litigated was not the same as that presented in the case at bar.

[4] It is contended that the judgment roll was properly excluded because it appears therefrom that the decree was based upon a stipulation of counsel and not upon the “evidence and law governing the case.” It is particularly urged that the stipulation, which was not produced because missing from the files, “did in fact eliminate * * * from the terms of the judgment * * * the particular tract * * * involved in the case at bar”; such fact being, it is claimed, shown by the judgment roll.

From the records offered, it appears that the decree was arrived at after several days spent in the trial of the cause. It recites:

“Now at this day, this cause coming on to be heard upon the stipulation and agreement of the parties hereto made in open court and the evidence herein, and the court having heard the evidence and now being fully advised, it is hereby found, considered, adjudged, and decreed that the parties hereto consent that the jury may be discharged and jury trial is hereby waived, and it is agreed that this cause may be tried to the judge of this court and without the intervention of a jury, and tried upon the evidence taken and the stipulation made by the parties in open court.”

There appears also in the decree the following reference to...