Dame v. Cochiti Reduction & Improvement Co.
Court | Supreme Court of New Mexico |
Citation | 13 N.M. 10,79 P. 296 |
Decision Date | 17 January 1905 |
Parties | DAMEv.COCHITI REDUCTION & IMPROVEMENT CO. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Upon appeal from a judgment upon default the sufficiency of the complaint is to be tested as upon demurrer, and, if the allegations of the complaint are insufficient to sustain the judgment, the same will be reversed.
2. Testing the complaint in this cause by the foregoing rule, the same stated no cause of action for either attorney's fees or the principal of the bonds sued on.
3. In the absence of any allegation and proof of an agreement to pay counsel fees, such fees cannot, unless specially provided for by statute, be awarded, either as costs or otherwise.
4. An allegation “that by reason of the failure of said company to pay said interest coupons when due, and by reason of their failure to have paid any part of the same for over six months last past, and for over six months last past since their presentation at the place designated for payment, *** the principal *** on said bonds is now due and payable,” is not a pleading of the substantive facts necessary to constitute a cause of action for such principal, but is the statement of a mere conclusion of law.
5. A judgment for the principal of the bonds here sued on, rendered by default upon the allegations last set forth, cannot be sustained.
Appeal from District Court, Bernalillo County; before Justice B. S. Baker.
Action by W. E. Dame against the Cochiti Reduction & Improvement Company. Judgment for plaintiff. Defendant appeals. Reversed.
This is a suit filed on February 28, 1903, to recover on five bonds sold to the plaintiff and appellee, W. E. Dame, by the Cochiti Reduction & Improvement Company, the appellant. The allegations of the complaint, omitting those here immaterial, are as follows: Upon the foregoing allegations, plaintiff demanded judgment for $500, principal of said bonds, $45, being amount of said coupons upon the said bonds, with interest on said $545 from October 1, 1902, attorney's fees, and costs. A copy of the bond and coupon mentioned in the complaint is attached thereto. It seems sufficient to say that in neither is there any stipulation for the payment of attorney's fees, nor any provision that upon default of payment of interest the principal is to become due. The defendant failed to appear, default was adjudged, and on April 3, 1903, final judgment was entered for $560, together with costs, including $50 attorney's fees. The judgment is prefaced by the following recital: “This cause, coming on for hearing, and the jury being waived by the plaintiff, was submitted to the court upon the pleadings and evidence.” On June 5, 1903, a motion was filed to recall the execution and to vacate the judgment, which being overruled, an appeal was taken to this court.
An allegation in an action on a bond of a corporation that, by failure of the company to pay interest coupons when due and by default for over six months since their presentation for payment, the principal of said bonds is now due and payable, is a statement of a mere conclusion of law, and not a pleading of substantive facts necessary to constitute a cause of action for such principal.
M. E. Hickey and McMillen & Reynolds, for appellant.
E. W. Dobson, for appellee.
POPE, J. (after stating the facts).
The ground specifically urged in the court below, as well as in this court, for vacating the judgment, is that the court erred in...
To continue reading
Request your trial-
New Mexico Right to Choose/NARAL v. Johnson
... ... 163, 169-71, 113 P. 813, 814-815 (1911); cf. Dame v. Cochiti Reduction & Improvement Co., 13 N.M. 10, 15, 79 P. 296, 298 ... ...
- Int'l Harvester Co. of Am. v. Cameron
- Leforce v. Haymes
- Morgan v. Ice