Crichton v. Storz

• Decision Date: 25 March 1915
• Docket Number: No. 1670.,1670.
• Citation: 147 P. 916,20 N.M. 195
• Parties: CRICHTON ET AL.v.STORZ ET AL.
• Court: New Mexico Supreme Court

20 N.M. 195

147 P. 916

CRICHTON ET AL.

v.STORZ ET AL.

No. 1670.

Supreme Court of New Mexico.

March 25, 1915.Rehearing Denied April 23, 1915.

Syllabus by the Court.

A final decree may be amended, in a material point, where the amendment is in a matter as to which there could not have been a doubt of the plaintiff's right to have it made part of the decree, if it had been asked for when the decree was rendered, and the omission to insert it in the decree, as part thereof, arose from inadvertence.

Where, in an action to foreclose a mechanic's lien, judgment was taken for the amount of the lien, costs of filing, and attorney's fees for foreclosing the same only, and thereafter the court gave an additional judgment foreclosing the liens, held, that such additional judgment was not void as being beyond the jurisdiction of the court.

There are no terms of the district courts in this state the lapse of which would deprive a court of control over its judgments and decrees in causes where there are no jury trials. Weaver v. Weaver, 16 N. M. 98, 113 Pac. 599, followed.

Appeal from District Court, Santa Fé County; E. C. Abbott, Judge.

Action by Roy J. Crichton and others against Andy Storz and others. From judgment for defendants, plaintiffs appeal. Affirmed.

An additional judgment foreclosing mechanics' liens held not void, as beyond the court's jurisdiction, though a judgment had been previously taken for the amount of the lien, costs, and attorney's fees.

This appeal involves two suits from the district court of Santa Fé county, namely, Roy J. Crichton v. Andy Storz et al., No. 7053, and Wood-Davis Hardware Co. et al. v. Andy Storz et al., No. 7060. Andy Storz and wife were the owners of the real estate involved, subject to the liens claimed.

Cause No. 7053, filed January 31, 1913, was a suit by Roy J. Crichton to foreclose a mechanic's lien, and, in addition to Storz and wife, M. W. Flournoy, trustee under a deed of trust upon said real estate, and the Occidental Life Insurance Company, the owner of said debt, were made parties. Judgment was rendered in favor of the plaintiff on March 28, 1913, establishing his mechanic's lien, and on May 8, 1913, in favor of the Occidental Life Insurance Company and said Flournoy, foreclosing said deed of trust. John W. Mayes was appointed as receiver to take charge of the rents and profits, and later appointed as special master to make said sale.

Case No. 7060 was filed February 13, 1913, by Wood-Davis Hardware Company and Philip Hesch, Jr., against Andy Storz and wife to foreclose mechanics' liens on the real estate involved. A default judgment was rendered against the defendants on May 13, 1913, for the amount of the indebtedness claimed and for costs of filing the liens and attorney's fees, but ignoring their alleged liens. After due advertisement John W. Mayes, as special master, on the 15th day of August, 1913, sold the real estate in question to John G. Schumann for the sum of $3,000, and the said sale was duly confirmed by the court. On October 2, 1913, and before order of distribution, the United States Bank & Trust Company filed its intervening petition, setting up a judgment lien against said premises.

On November 8, 1913, there was filed in said cause an order of distribution (Record, pp. 70 and 71); but before the money was paid out the plaintiffs in case No. 7060, on November 14, 1913, filed in said cause No. 7053 a petition and motion claiming a part of the proceeds of said sale, and on the same date filed in said cause No. 7060 a motion for additional judgment, and on November 24th a judgment was rendered in cause No. 7060 declaring liens in favor of plaintiffs in that case. On November 26th judgment was entered consolidating the above two causes, and distributing the proceeds of said sale in No. 7053.

By this judgment the alleged liens of Wood-Davis Hardware Company and Philip Hesch, Jr., were ordered paid prior to the mortgage lien of Occidental Life Insurance Company and the judgment lien of the United States Bank & Trust Company. The proceeds in the hands of the special master were not sufficient, under the order of distribution made, to pay the Occidental Life Insurance Company in full, or any portion of the judgment of the United States Bank & Trust Company; and from said judgment, in so far as it ordered the payment of Wood-Davis Hardware Company and Philip Hesch, Jr., prior to the claims of appellants, the Occidental Life Insurance Company and United States Bank & Trust Company appealed.

Roberts, C. J., dissenting.

A. B....