Kleeman v. Fogerson

Decision Date23 November 1964
Docket NumberNo. 7492,7492
Citation1964 NMSC 246,74 N.M. 688,397 P.2d 716
PartiesE. T. KLEEMAN, Plaintiff-Appellant, v. Ware FOGERSON and Mrs. Walter Fogerson, Administratrix of the Estate of Walter Fogerson, deceased, Defendants-Appellees.
CourtNew Mexico Supreme Court

Chester A. Hunker, Clovis, for appellant.

Smith, Smith & Tharp, Clovis, for appellees.

CARMODY, Justice.

From the action of the trial court in dismissing plaintiff's complaint and granting judgment on defendants' counterclaim, plaintiff appeals.

Plaintiff brought suit to recover the reasonable value of grazing twenty-three head of cattle on the plaintiff's pasture land. The defendants answered and also counterclaimed for an alleged breach of contract, by reason of a claimed violation of the covenants in a lease agreement entered into between the parties, viz., failure to maintain boundary fences and adequate water supply for the use of cattle on the premises. The lease, or a copy thereof, was not attached to the pleadings. Plaintiff's answer to the cross-complaint admitted a lease, but denied failure to comply with the covenants. Thereafter, when the case came on for trial, the plaintiff objected to the introduction of the lease as being in conflict with Sec. 21-1-1(9)(k), N.M.S.A.1953, on the ground that the failure to attach a copy, or to give a sufficient reason for failure to do so, required the court to refuse the offer of evidence. The trial court overruled the objection and allowed the lease in evidence. At the conclusion of the trial, the court dismissed plaintiff's complaint and granted judgment in favor of the defendants on their counterclaim.

The facts are briefly these: The defendants leased certain pasture land owned by the plaintiff for a six-month period, in order to pasture approximately 180 head of livestock and their increase. The defendants paid the amount agreed upon, but a controversy arose between the parties with respect to twenty-three additional head of cattle which the plaintiff claimed the defendants pastured on his property, to his damage.

The plaintiff, in his complaint, merely contended that the defendants owed him for the pasturing of twenty-three head of cattle, without any mention of the lease or the other 180 head. The defendants' counterclaim, based on the lease, related to the damage allegedly suffered because of inadequate water and improper fencing.

The trial court found that no additional livestock were pastured over and above the number provided in the lease, and it was for this reason that the plaintiff's complaint was dismissed. One of plaintiff's contentions is that there was sufficient evidence to support his complaint and that therefore the trial court was in error in dismissing the same.

It has been too often held by us to require the stating of authority that on a question of controverted evidence, where there is substantial evidence to support the trial court, we will not disturb its ruling. This is the situation here, and we find no merit in the plaintiff's contention with respect to dismissal of his complaint.

A more serious problem is raised by the plaintiff in connection with the admission of the lease into evidence. Rule 9(k) (Sec. 21-1-1(9)(k), N.M.S.A.1953, supra), insofar as pertinent, is as follows:

'When any instrument of writing upon which the action or defense is founded is referred to in the pleadings, the original or a copy thereof shall be filed with the pleading, if within the power or control of the party wishing to use the same, and if such original or a copy thereof be not filed as herein required, or a sufficient reason given for failure to do so, such instrument of writing shall not be admitted in evidence upon the trial.

'* * *.' (Emphasis added.)

The above rule was a part of the New Mexico statutory law prior to its incorporation in the rules of civil procedure at the time they were adopted by this court in 1942. In cases decided before 1942, there is little doubt but that the lease would not have beenadmissibleevid enceUnderthe circumstances here existing. See First National Bank of Tucumcari v. Speed, 1909, 15 N.M. 1, 99 P. 696, and Silver v. Fidelity & Deposit Co. v. Maryland, 1935, 40 N.M. 33, 53 P.2d 459. However, the question now arises as to whether the same result follows, in view of the integration of this rule into the entire body of the rules of civil procedure. Specifically, it must be determined whether Sec. 21-1-1(15)(b), N.M.S.A.1953, should apply to rule 9(k) as well as the other subdivisions of rule 9 which we adopted from the federal rules, or, contrariwise, if because of its history as being originally a statute, rule 15(b) is not applicable to rule 9(k). We see no reason why there should be any difference in application of the liberal amendment provision of rule 15(b). There is nothing in our decisions prior to our adoption of the rules which would require a different result. For clarity, rule 15(b), supra, insofar as it is pertinent to this case, is as follows:

'* * * If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.'

When we consider the circumstances here present, in conjunction with rule 15(b), we conclude that there was no error on the part of the trial court. During the cross-examination of the plaintiff, he was examined with respect to the lease between the parties and admitted its existence, as, incidentally, he had already done in his pleadings. The lease was then offered in evidence and objection to its receipt was made, based entirely upon rule 9(k). It was at this time that the defendants asked leave to amend by filing a copy of the contract as a part of the counterclaim. The court, although not specifically stating...

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4 cases
  • Maine v. Garvin
    • United States
    • New Mexico Supreme Court
    • July 18, 1966
    ...to amend the complaint 'to comply with all the proof, and to plead the written contract.' In our view of this point, Kleeman v. Fogerson, 74 N.M. 688, 397 P.2d 716, supplies a complete answer adverse to defendant. We there had under consideration the proper application of Rule 9(k) (§ 21--1......
  • Schnoor v. Griffin
    • United States
    • New Mexico Supreme Court
    • April 22, 1968
    ...Further, rule 15(b) (§ 21--1--1(15)(b), N.M.S.A.1953) provides that amendments shall be liberally allowed. See, Kleeman v. Fogerson, 1964, 74 N.M. 688, 397 P.2d 716; and Maine v. Garvin, 1966, 76 N.M. 546, 417 P.2d We also take note of § 22--10--7, N.M.S.A.1953, which is a part of the same ......
  • Dunson Contractors, Inc. v. Koury
    • United States
    • New Mexico Supreme Court
    • July 11, 1966
    ...73 N.M. 50, 385 P.2d 570, and the judgment of the trial court must be affirmed if it is sustained by those facts. Kleeman v. Fogerson, 74 N.M. 688, 397 P.2d 716. The defendant's contention that plaintiff's action is barred by §§ 67--16--16 and 67--16--17, N.M.S.A.1953, for failure of plaint......
  • Gray v. J. P. Gibbins, Inc.
    • United States
    • New Mexico Supreme Court
    • December 6, 1965
    ...inferences to be drawn therefrom in support of the judgment. Sauter v. St. Michael's College, 70 N.M. 380, 374 P.2d 134; Kleeman v. Fogerson, 74 N.M. 688, 397 P.2d 716. The appellee testified that he was in good health at the time of the accident and that he had never felt better in his lif......

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