Curbello v. Vaughn
| Decision Date | 23 October 1967 |
| Docket Number | No. 8402,8402 |
| Citation | 78 N.M. 489,432 P.2d 845,1967 NMSC 243 |
| Parties | Iva Lee CURBELLO, Plaintiff-Appellant, v. Vivian Margarite VAUGHN, Individually and as Executrix of the Last Will and Testament of Edna Baker Rice, Deceased, Belle Rizzuto, Clyde H. Hurley, E.J. Hurley, Emil Hurley and Hazel Thorpe. Defendants-Appellees. |
| Court | New Mexico Supreme Court |
We dismissed the first appeal of this case as premature because no formal judgment had been entered. Curbello v. Vaughn, 76 N.M. 687, 417 P.2d 881. Findings of fact and conclusions of law had been entered by Honorable E. T. Hensley, Jr., the trial judge, who is now Chief Judge of the Court of Appeals. A judgment conforming to the decision of Judge Hensley has now been entered by Judge Blythe of the Ninth Judicial District sitting by stipulation. This appeal is from that judgment
The action sought specific performance of an oral agreement to devise certain real estate to plaintiff in consideration of her taking care of Edna Baker Rice, the decedent, during the remainder of her life. At the conclusion of plaintiff's case, she moved, pursuant to Rule of Civil Procedure 15(b) (§ 21--1--1(15)(b), N.M.S.A. 1953), and the trial court granted permission to amend the complaint to conform to the proof, so as to allege that during her lifetime the decedent conveyed certain of the real estate to plaintiff. The amended pleading then sought a judgment declaring Lots 1 and 2 in Block 9 of the Russell Addition to Tucumcari to be vested in plaintiff in fee simple. Plaintiff requested findings and conclusions so declaring the title and defendants' requested findings to the effect that there was only a conditional delivery of the deed with its subsequent return to the grantor by an escrow agent at plaintiff's request with intent that it be destroyed and ineffective. The court refused all requests concerning the deed and its effect and made none concerning it.
The trial court must, when requested, find one way or another upon a material issue. Rule of Civil Procedure 50(B) (§ 21--1--1(52)(B), N.M.S.A. 1953):
'(a) * * * (1) Upon the rial of any case by the court without a jury, its decision which shall consist of its findings of fact and conclusions of law, must be given in writing and filed with the clerk in the cause. In such decision the court shall find the facts and give its conclusions of law pertinent to the case, which must be stated separately.
'(2) The findings of fact shall consist only of such ultimate facts as are necessary to determine the issues in the case, as distinguished from evidentiary facts supporting them. Such findings shall be separately stated and numbered.
'* * *' (Emphasis supplied.)
In Laumbach v. Laumbach, 58 N.M. 248, 270 P.2d 385, we said, concerning its...
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Spingola v. Spingola
...It is the duty of the trial court to find all of the ultimate facts where a request is seasonably and properly made. Curbello v. Vaughn, 78 N.M. 489, 432 P.2d 845 (1967). The court may not disregard such undisputed relevant testimony on a material issue. Lopez v. Maes, 81 N.M. 693, 472 P.2d......
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...court must make findings only with regard to ultimate facts--those necessary to determine the issues of the case. Curbello v. Vaughn, 78 N.M. 489, 432 P.2d 845 (1967); SCRA 1986, 1-052(B)(1)(b). The refusal by the court to accept a requested finding is regarded on appeal as a finding agains......
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