Mann v. Gordon.
Decision Date | 30 August 1910 |
Citation | 15 N.M. 652,110 P. 1043 |
Parties | MANNv.GORDON. |
Court | New Mexico Supreme Court |
Syllabus by the Court.
In a suit brought to recover money lost at gambling within one year prior to the bringing of such action, moneys won at gambling by the plaintiff from the defendant more than one year prior to the commencement of action by the plaintiff to recover his loss are not within the terms of section 2927 of the Compiled Laws of 1897 and cannot be pleaded as a set-off or counterclaim to the original cause of action.
A demurrer to a counterclaim which pleaded a cause of action under the gaming statutes barred by the statutes of limitation was properly sustained.
In an action under section 3199, Comp. Laws 1897, to recover money lost at a gambling device, it was in evidence that the plaintiff did not settle the loss at the time of the play, but about six weeks later he gave a check which defendant subsequently cashed.
Held, that an instruction to the effect that the loss occurred at the time the game was played, and not when the check was given or the money paid, was proper.
(Additional Syllabus by Editorial Staff.)
Statutes providing for recovery of money or property lost at gaming are remedial in nature, designed to discourage gambling by making the gamekeeper's winnings insecure, and should not be too narrowly construed.
Appeal from District Court, Bernalillo County; Dbefore Justice Ira A. Abbott.
Action by Otto Mann against John A. Gordon. Judgment for plaintiff, and defendant appeals. Affirmed.
Statutes providing for recovery of money or property lost at gaming are remedial and should not be too narrowly construed.
This is a suit brought by appellee to recover $960 alleged to have been lost at gambling. The complaint was filed April 24, 1907, and alleges that the money was lost on April 28, 1906. The answer denies that plaintiff lost the money and denies that the cause of action accrued within one year; and further alleges as a counterclaim and set-off that on August 17, 1905, the appellee won from the appellant $975. A reply was filed, which was afterwards withdrawn, and a demurrer filed to the answer, on the ground that the counterclaim filed to the answer failed to state facts constituting a cause of action, in that the alleged cause of action set up in the counterclaim had not accrued within one year from the bringing of the suit. There were other grounds of demurrer; but the same are not material to the issues herein. This demurrer was sustained, and thereafter trial was had to the court and jury upon the issues made by the complaint and denial of liability contained in the answer, which resulted in a verdict for the plaintiff of “$560 and 6 per cent.” From the judgment entered thereon defendant below appealed to this court.
E. W. Dobson, for appellant. E. L. Medler, for appellee.
MECHEM, J. (after stating the facts as above).
The appellant assigns eleven grounds of error, but in his brief and upon oral argument abandoned all but three. Of these, only two are necessary to a determination of the case.
1. It is insisted that the court erred in sustaining appellee's demurrer to the counterclaim set up in the answer.
Section 3211 of the Compiled Laws of 1897 provides that any suit brought under the act to restrain gaming shall be commenced within one year from the time such action accrued, and not afterwards. Section 2927 of the Compiled Laws, which was section 14 of the Acts of 1880, c. 5, reads as follows: “A set-off or counterclaim may be pleaded as a defense to any cause of action, notwithstanding such set-off or counterclaim may be barred by the provisions of this act, if such set-off or counterclaim so pleaded was the property or right of the party pleading the same at the time it became barred and at the time of the commencement of the action, and the same was not barred at the time the cause of action sued for accrued or originated; but no judgment for any excess of such set-off or counterclaim over the demand of the plaintiff as proved shall be rendered in favor of the defendant.” U. S. v. Howland, 1 N. M. 550; Staab et al. v. Ortiz, 3 N. M. (Gild.) 33, 1 Pac. 857. The cause of action set up as a counterclaim by appellant was barred as an independent action at the time the complaint herein was filed in the district court. Counsel for appellant contends, however, that the counterclaim pleaded in the answer comes within section 2927 cited supra. Evidently he overlooked the limitation therein expressed limiting the provisions of the act permitting a barred action to be pleaded as a counterclaim or set-off, to the actions specifically mentioned in such act. Section 2929, which was section 16 of the same act, as 2927, cited supra, provides as follows: “None of the provisions of this act shall apply to any action or suit, which by any particular statute of this territory, is limited to be commenced within a different time, nor shall this act be construed to repeal any existing statute of the territory which provides a limitation of any action; but in such case the limitation shall be as provided by existing statutes.” The gaming law being an earlier statute, and not one of the causes of action mentioned in the earlier sections of the act of 1880, and containing specific restrictions as to the right to bring an action to recover moneys lost at gambling, is clearly not within the provisions of section 2927, cited supra, and the demurrer was properly sustained.
2. The remaining assignment of error relates to the refusal of the court to give the following instruction to the jury: “The jury are instructed that, if you believe from the evidence that the check for $460 was given by the plaintiff to the defendant a month or so after the playing of the game at which it is alleged that the same was lost, then the money represented by said check cannot be recovered by the plaintiff in this action.” The court refused this instruction and instructed the jury upon this point as follows: “Now, whatever loss occurred, and that you are to determine from the evidence, you are instructed occurred at the time the game was played, and not in any particular at any later time; that is, the two checks for $200 each, if they were such check, were lost when they were given, and not when they were paid, and the check for $460, if that amount was lost at all, and that you are to determine from the evidence, was lost at the time of the game, and not at the time the check was given, so you are to determine from the evidence whether the plaintiff did lose to the defendant $960, or any part of it, within the year prior to the 24th day of April, 1907.”
The testimony of the plaintiff was to the effect that he lost $960 on or about April 28, 1906; that of this amount he paid $100 in cash at the time of the game and gave two $200 checks which he took up two or three days later, paying the money and destroying the checks; that the balance of $460 was not paid at the time of the game; that on the 1st of June following, more than a month after the alleged loss of the money, he gave the defendant a cheek for $460, which defendant afterwards cashed. It appeared from the evidence, as an undisputed fact, that the $460 was paid as aforesaid; that it represented...
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