Gladin v. Compton

• Decision Date: 20 May 1963
• Docket Number: No. 7212,7212
• Citation: 381 P.2d 961,1963 NMSC 97,72 N.M. 175
• Parties: Reba Reynolds GLADIN, Plaintiff-Appellee, v. K. D. COMPTON, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 961

381 P.2d 961

72 N.M. 175

Reba Reynolds GLADIN, Plaintiff-Appellee, v. K. D. COMPTON, Defendant-Appellant.

No. 7212.

Supreme Court of New Mexico.

May 20, 1963.

W. W. Atkinson, Albuquerque, for appellant.

Walter K. Martinez, John V. Coan, Grants, for appellee.

CARMODY, Justice.

This is an appeal from an award of a small money judgment to appellee and an adjudication that her debt to appellant had been paid in full, as well as an order to appellant to transfer certain property to her.

The findings of the trial court are as follows:

'* * * 2. That the real estate contract assignment entered into between the parties in favor of the Defendant is a security transaction rather than an absolute conveyance from the Plaintiff to the Defendant.

'3. That the Defendant, as Mortgagee in Possession, received and is accountable to the Plaintiff in the course of the operation of the Mesa Trailer Court, [in] the sum of $20,115.86.

'4. That the Defendant is entitled to credit against the amount received for general operation of the business and payment of the indebtedness owed by the Plaintiff to the Defendant in the amount of $19,812.57.

'5. That the Defendant by reason of his operation of the business covered by the real estate contract assignment has received funds above and beyond the amount of the debt and all just expenses, claims and setoffs in the amount of $303.29, which amount is due and owing to the Plaintiff.

'6. That the Plaintiff is entitled to a conveyance from the defendant of all of his right, title and interest in and to the property that is the subject matter of this action.'

Finding No. 4 is not attacked directly, but appellant claims that in the total amount deducted from expenses, the amount of $290.00 was included twice; that appellant should have been allowed a reasonable amount for his services in operating the trailer court; that he should have been permitted to recover the costs to him of installing gas and sewer lines; and, lastly, that the debt represented by two promissory notes from plaintiff had not been extinguished and he should, therefore, have been allowed interest on the notes and a reasonable attorney's fee. In essence, appellant quarrels with the total amount of credits allowed by the trial court in its finding No. 4, and with the court's refusal to make findings in accordance with the appellant's theory of the credits properly deductible from income.

All of the items upon which appellant brings this appeal are considered in finding No. 4 in some way or another, although no breakdown, as such, was made by the trial court. The evidence is clear, however, that there was a double deduction of the $290.00 item, as claimed by appellant. On the other hand, to counteract this error, appellee points out that other mistakes were made in computing the total amount of the credits which would more than offset this miscalculation. Nevertheless, no cross-appeal was taken, and thus it must stand as admitted that another $290.00 must be added to the total of appellant's expenses in operating the business. The effect of this addition will be to increase the sum found in finding No. 4, as credits, in the amount of $290.00.

With respect to the other points urged by appellant, however, it would seem that we are asked to substitute our judgment for that of the...