Laumbach v. Laumbach, 5702
| Decision Date | 07 May 1954 |
| Docket Number | No. 5702,5702 |
| Citation | 270 P.2d 385,58 N.M. 248,1954 NMSC 42 |
| Parties | LAUMBACH v. LAUMBACH et al. |
| Court | New Mexico Supreme Court |
McAtee & Toulouse, Eva Thomas and Wm. C. Marchiondo, Albuquerque, for appellant.
John B. Wright, Raton, C. E. McGinnis, Springer, for Joyce Laumbach.
Roberto L. Armijo, Las Vegas, for Rudolph Laumbach and Leona Laumbach, his wife.
Appeal is from a judgment of the district court of San Miguel County dismissing plaintiff's complaint on the ground that he had wholly failed to sustain the allegations of his complaint. The complaint, among other things, alleged:
'That the defendant, Rudolph Laumbach, has at no time material herein paid any consideration to the said Peter J. Laumbach, Sr., or in any wise carried out any part of his said agreement to assist, care for, support or maintatin the said Peter J. Laumbach, Sr., that to the contrary, defendant, Rudolph Laumbach, has wrongfully and wilfully failed, refused and neglected in any way to carry out any part or portion of his said agreement, * * *'.
By his answer the defendant denied the allegations of the above paragraph as follows:
'Defendants, Rudolph Laumbach and Leona Laumbach, deny each and every material affirmative allegation contained in paragraph number seven (7) of plaintiff's complaint.'
On December 31, 1941, Peter J. Laumbach, who was then 74 years old, entered into an agreement with three of his sons, Alfred, Peter and Rudolph, wherein it was agreed that the three boys were to assist, care for, support and maintain their father according to his station in life, so long as he should live, in consideration of which the father was to deed certain tracts of land to each of the sons. Pursuant to and in compliance with the written agreement, Peter J. Laumbach, Sr., and his wife, on December 31, 1941, conveyed to each of the boys by warranty deeds lands described in the agreement. These deeds were duly recorded in the office of the county clerk of San Miguel County. During the year of 1948, Rudolph Laumbach conveyed the land deeded to him by his father, together with other lands he owned, to the defendant Joyce Laumbach.
As the case is submitted to us for decision, the single question for review is whether the plaintiff succeeded in proving the allegations contained in the above paragraph of his complaint.
The plaintiff requested the court to make a finding on the question of whether or not the defendant Rudolph Laumbach had supported his father according to the terms of the written agreement, but the court failed to make any finding on this question, although the defendant himself requested such a finding.
The court must, when requested, find one way or the other upon a material issue. Section 19-101(52) of 1941 Compi...
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...find all of the ultimate facts and determine all of the issues in the case. The failure to do so is reversible error. Laumbach v. Laumbach, 58 N.M. 248, 270 P.2d 385 (1954); Archibeck v. Mongiello, 58 N.M. 749, 276 P.2d 736 (1954); Thompson v. H.B. Zachry Co., 75 N.M. 715, 410 P.2d 740 (196......
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...upon a material issue. State ex rel. Reynolds v. Board of County Com'rs, County of Guadalupe, 71 N.M. 194, 376 P.2d 976; Laumbach v. Laumbach, 58 N.M. 248, 270 P.2d 385. However, under Rule of Civil Procedure 52(B)(a)(2) (Sec. 21-1-1(52)(B)(a)(2), N.M.S.A. 'The findings of fact shall consis......
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