Dame v. Cochiti Reduction & Improvement Co.

CourtSupreme Court of New Mexico
Citation13 N.M. 10,79 P. 296
Decision Date17 January 1905
PartiesDAMEv.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: “That the defendant is a corporation duly incorporated under the laws of the state of Colorado, and having its principal place of business near Bland, Bernalillo county, territory of New Mexico, and that the said defendant, under and by virtue of its incorporation papers and by-laws, was duly authorized and empowered to borrow money, and thereafter its directors, duly elected, did, at a meeting duly called, vote for the issuing of first mortgage bonds to an amount not to exceed - dollars, and that said bonds were duly issued in and upon the 1st day of April, 1899. Plaintiff alleges that the said bonds were to be of the value of one hundred ($100) dollars each, and that a copy of said bonds is hereto attached to said complaint, marked ‘Exhibit A,’ and made a part of the same. Plaintiff alleges that he purchased, for value received, five of the said bonds hereinbefore mentioned, being the numbers 132 to 136, inclusive, and that he is at the present time the owner of said bonds. Plaintiff further alleges that the interest coupons for the sum of three ($3) dollars each upon each of said bonds, due and payable on the 1st day of October, A. D. 1901, were duly presented at the place designated in said deed of trust mortgage, to wit, the State Trust Company of the City of New York, and payment was refused thereon, and that all of said coupons have been due and payable for over six months last past, and that the same were presented for payment more than six months last past at the place designated for payment, and said payment was refused, and the said coupons are still due and unpaid. Plaintiff further alleges that the interest coupons in and upon each of said bonds for the sum of three ($3) dollars each, due and payable on the 1st day of April, A. D. 1902, were duly presented to the State Trust Company of the City of New York for payment over six months last past, and that payment thereof was duly refused, and that the same still are due and unpaid, and that the said coupons have been due and unpaid for over six months last past, and for over six months since the time of presentation of the same for payment. Plaintiff further alleges that the interest coupons for the sum of three ($3) dollars upon each of said bonds was due and payable on the 1st day of October, A. D. 1902, and are still due and unpaid. Plaintiff alleges 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, that both the principal and interest on said bonds is now due and payable, and thereby the defendant is indebted to this plaintiff in the sum of five hundred ($500) dollars principal, and also forty-five ($45) dollars, being the amount of said coupons upon said bonds, and also for interest upon said bonds due from October 1, 1902. Wherefore the plaintiff demands judgment against the said defendant for the sum of five hundred ($500) dollars, the amount of the principal of said bonds, and wherefore plaintiff also demands judgment for the sum of forty-five ($45) dollars, being the amount of said coupons upon the said bonds, and the plaintiff also demands judgment against said defendant for interest due on said bonds from October 1, 1902, up to date. Wherefore plaintiff demands judgment against the said defendant for the sum of five hundred and forty-five dollars ($545) dollars from October 1, 1902, up to date, and for his costs in this suit expended, and for attorney's fees to be fixed by the court as a part of said costs.” 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
17 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT