Knollenberg v. State Bank of Alamogordo

• Decision Date: 10 March 1936
• Docket Number: No. 4025.,4025.
• Citation: 58 P.2d 1195,40 N.M. 284
• Parties: KNOLLENBERGv.STATE BANK OF ALAMOGORDO et al.
• Court: New Mexico Supreme Court

40 N.M. 284

58 P.2d 1195

KNOLLENBERG

v.STATE BANK OF ALAMOGORDO et al.

No. 4025.

Supreme Court of New Mexico.

March 10, 1936.Rehearing Denied June 30, 1936.

Appeal from District Court, Otero County; Frenger, Judge.

Suit by Florence C. Knollenberg against the State Bank of Alamogordo and others. From a judgment dismissing her complaint, the plaintiff appeals.

Reversed and remanded, with directions.

Judgment of Supreme Court reversing ruling striking amended complaint seeking cancellation of tax deed which alleged payment of taxes after demurrer was sustained, because plaintiff had not alleged payment of taxes or property's nonliability, held to constitute holding that fourth amended complaint stated cause of action as against subsequent demurrer on ground that payment before tax sale was not alleged. Laws 1921, c. 133, § 435.

Fred C. Knollenberg, of El Paso, Tex., for appellant.

Quincy D. Adams, Asst. Atty. Gen., for appellees.

SADLER, Chief Justice.

The plaintiff appeals from an order dismissing her fourth amended complaint following a refusal to plead further upon entry of an order sustaining defendant's demurrer to said complaint. The relief sought is cancellation of a tax deed to certain real estate.

The case has been twice before us on direct appeals from separate judgments, one for and one against the plaintiff. Knollenberg v. State Bank of Alamogordo, 35 N.M. 427, 299 P. 1077, writ of certiorari denied by United States Supreme Court 284 U.S. 661, 52 S.Ct. 37, 76 L.Ed. 560; Id., 37 N.M. 441, 24 P.(2d) 284. In addition, a judgment of the district court of Otero county awarding peremptory writ of mandamus against the treasurer of said county to compel acceptance of tendered tax money in redemption of the real estate involved from tax sale was reviewed in Knollenberg v. Mitchell, 35 N. M. 345, 297 P. 145. The judgment appealed from was reversed, with directions to discharge the writ because the tender was untimely.

Our decision on the first appeal of the case now before us reversed a judgment in plaintiff's favor. We held that an effort to redeem the property, considered effectual by the trial court, was untimely; that other claimed irregularities did not touch the essentials of taxation; and “that in the situation in which we found plaintiff, the only successful attack she could have made on the tax deed was that the property conveyed thereby was not, at the time the taxes were laid thereon, subject to taxation or that the taxes had been paid.”

The mandate directed reinstatement of the cause on the docket of the trial court, the sustaining of defendant's demurrer, “and for such further proceedings as may be proper,” etc. Following reinstatement of the cause on the docket, the trial court entered its order sustaining the demurrer to second amended complaint of plaintiff with leave to plead further within twenty days. Her next complaint was designated “first amended complaint after the mandate of the Supreme Court directing the demurrer herein filed by defendant be sustained.”

The defendant thereupon filed its “motion to strike fourth amended complaint and for final judgment.” Due to a certain amendment by way of interlineation, the last complaint filed in numerical order constituted the fourth amended complaint and was so treated by the defendant and the court. The grounds of this motion to strike are set out in full in the report of the second appeal. 37 N.M. 441, 24 P.(2d) 284, 285. The motion was sustained and judgment rendered on the pleadings in defendant's favor.

As pointed out in the opinion, on appeal from that judgment there appeared for the first time in the stricken fourth amended complaint an allegation (not occurring in any of the previous complaints) of payment of the taxes for nonpayment of which the property in question had been sold. Such allegation appears as subparagraph IV of the so-called “second count” of plaintiff's fourth amended complaint and reads as follows: “(b) that it (tax deed) is based upon an alleged sale for taxes for the year 1920, and said taxes and all years thereafter were paid by this plaintiff or her agents.”

The apparent basis of the trial court's action in striking the complaint was, as we pointed out, that allegations of the fourth amended complaint as a whole were substantially a repetition of allegations which theretofore had been fully considered by the court. We held this was not true as to the allegation of payment and that said allegation was not subject to the objection that it introduced an entirely new and different cause of action. We said: “The very thing which we found [on the former appeal] vitally absent, i. e., ‘that the taxes have been paid,’ appellant (plaintiff) now alleges.”

In disposing of the case we said:

“Our holding on the first appeal in the case at bar following the decisions in a group of tax cases, therein cited, while just, resulted in pronounced...