Cullender v. Doyal Et Ux.

• Decision Date: 05 June 1940
• Docket Number: No. 4484.,4484.
• Parties: CULLENDERv.DOYAL et ux.
• Court: New Mexico Supreme Court

44 N.M. 491

105 P.2d 326

CULLENDER

v.DOYAL et ux.

No. 4484.

Supreme Court of New Mexico.

June 5, 1940.Rehearing Denied June 5, 1940.Second Motion for Rehearing Denied Sept. 18, 1940.

Appeal from District Court, Chaves County; George W. Hay, Judge.

Action by James M. H. Cullender, administrator of the estate of Mary A. Reynolds, deceased, against Allen Doyal and Lola Doyal, his wife, upon a note and mortgage. From the judgment, plaintiff appeals and defendants cross-appeal.

Judgment affirmed.

Any error in overruling plaintiff's motion for judgment at close of testimony of plaintiff and defendants was waived by plaintiff's subsequent introduction of rebuttal testimony.

E. E. Young, of Roswell, for appellant.

O. E. Little and Lake J. Frazier, both of Roswell, for appellees.

PER CURIAM.

Upon motion for rehearing the original opinion is withdrawn and the following substituted:

BRICE, Justice.

[1] The statement of facts which Section 14 (Sec. 3 of Rule 15) requires to be incorporated in appellant's brief has reference to the facts upon which the case must be determined in this court. An argument upon the evidence, such as appears in appellant's brief under “Statement of Facts” is of no assistance to us. We are bound by the findings of the court unless set aside by us. Wells v. Gulf Refining Co., 42 N.M. 378, 79 P.2d 921; In re White's Estate, 41 N.M. 631, 73 P.2d 316.

[2] It is asserted that the court erred in refusing to adopt as a part of his decision certain requested findings of fact made by appellant. It is asserted in a general way, regarding each of these requests, that it is supported by evidence, but the substance of the testimony bearing thereon is not stated, nor is any reference made to the pages of the record where it may be found. We will not read the whole record in connection with each of these requests to determine whether it was so positively and certainly proved that it became the duty of the trial court to incorporate it in his decision. In no other way could we determine whether the court erred.

It is contended that the court erred in making certain findings of fact, in that they were not supported by substantial testimony. Paragraph 6 of Supreme Court Rule 15 is entirely ignored. It reads: “Assertion of fact must be accompanied by references to the transcript showing a finding or proof of it. Otherwise the court may disregard the fact.

“A contention that a verdict, judgment or finding of fact is not supported by substantial evidence will not ordinarily be entertained, unless the party so contending shall have stated in his brief the substance of all evidence bearing upon the proposition, with proper references to the transcript. Such a statement will be taken as complete unless the opposite party shall call attention in like manner to other evidence bearing upon the proposition.”

To determine the questions presented we would be compelled to search the entire record, which, in view of the rule, we are not inclined to do. Hobbs Water Co. v. Madera et al., 42 N.M. 373, 78 P.2d 1118; Dunn v. Town of Gallup et al., 38 N.M. 197, 29 P.2d 1053. The appellees, however, have copied in their brief evidence which substantially supports the findings of the court attacked here.

[3] The appellees filed in the district court a paper entitled “Answer and Supplemental Answer By Way of New Matter,” in which they incorporated by reference the allegations in their first amended answer, and followed with allegations of new matter. The appellant objected to the introduction of testimony on any defense incorporated in the supplemental answer by reference to the earlier pleadings, and cites as authority Albright v. Albright, 21 N.M. 606, 157 P. 662, Ann. Cas.1918E, 542, in which we held that a party must restate his entire cause of action or defense in a supplemental pleading, and that all allegations not so carried forward are abandoned. The appellees stated in their supplemental answer “that reference is here made to the first amended answer in this cause, including the answer by way of new matter, and the same is here adopted by the defendants.” This preparation of supplemental pleadings is not to be commended. However, appellant did not object to the form of the pleadings and we think under the circumstances it may be said that the incorporation by reference of the allegations of a pleading previously filed is not reversible error where no objection was made to its form.

[4] It is asserted that the court erred in overruling plaintiff's motion for judgment at the close of the testimony of the plaintiff and defendants. The record is not cited to establish that such motion was made nor is it copied in the brief. But a search has disclosed that at the close of defendants' testimony a motion of the character named was overruled by the court. If error it was waived by the appellant, who thereafter introduced rebuttal testimony.

The appellant's fourth assignment of error is: “The court erred in its refusal to make conclusions of law as requested by the plaintiff.” The nature of these conclusions does not appear from the brief, and only requested conclusion of law No. 2 is mentioned in the argument, regarding which appellant states: “We...