Martinez v. Floersheim Mercantile Co.
| Decision Date | 20 July 1921 |
| Docket Number | No. 2459.,2459. |
| Citation | 199 P. 905,27 N.M. 245 |
| Parties | MARTINEZv.FLOERSHEIM MERCANTILE CO. ET AL. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where it is shown to the satisfaction of the trial court that an application has been made for an extension of time to perfect an appeal, and that through the failure of the clerk to file the papers the time has expired before the papers are filed, they may be filed by order of the court, and the time extended nunc pro tunc.
The findings of the trial court that conveyances were made without consideration, made to cheat and defraud a particular creditor and to hinder and delay him in the collection of his judgment, which had been previously obtained, if supported by substantial evidence, will not be disturbed on appeal.
Appeal from District Court, Colfax County; Leib, Judge.
Action by Cleofas R. Martinez against the Floersheim Mercantile Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.
The findings of the trial court that conveyances were made without consideration, made to cheat and defraud a particular creditor and to hinder and delay him in the collection of his judgment, which had been previously obtained, if supported by substantial evidence, will not be disturbed on appeal.
Bickley, Kiker & Voorhees, of Raton, for appellant.
W. R. Holly, of Springer, for appellees.
On October 5, 1912, Jesus M. Martinez sold to the Floersheim Mercantile Company certain sheep, which were infected with a contagious disease known as scabies, and the controversy which resulted from the loss occasioned to the Floersheim Company was settled by a note being given by Martinez to the said company on November 18, 1912, for the sum of $1,321, to be paid in six months. This note was not paid at maturity, and suit was brought upon it; the defendant, Martinez, in his answer setting up that the note was obtained by fraud and duress. The case was tried by the court without a jury, and judgment given for the plaintiff, the Floersheim Mercantile Company on August 25, 1914, for the sum of $1,762. On October 28, 1914, the sheriff of Colfax county levied upon the property of J. M. Martinez to satisfy the judgment, and on November 14, 1914, this suit was begun by Cleofas R. Martinez, the wife of J. M. Martinez, seeking an injunction against the sheriff and the Floersheim Mercantile Company. Judgment below was given for the sheriff and the mercantile company, and Cleofas Martinez, the wife of J. M. Martinez, appealed from that judgment to this court.
The appellant, Cleofas Martinez, claims to be the owner of the property in question; it having been deeded to her by her husband, J. M. Martinez, on July 30, 1912. On said date a bill of sale was also made to her by him for certain personal property. The deed above mentioned, together with a power of attorney from Cleofas Martinez, the appellant, to J. M. Martinez, her husband, were made at the same time. The deed and power of attorney were recorded May 24, 1913. The bill of sale was recorded September 19, 1914. Both the bill of sale and the deed were acknowledged April 11, 1913. Appellant claims that the conveyances to her were in repayment of the property which she had brought into the marriage community over 30 years before the date of these conveyances. The trial judge found that the conveyance was a voluntary one, without consideration, made to cheat and defraud the Floersheim Company; that the appellant had, together with her husband in collusion, withheld the conveyance from record for the purpose of obtaining credit; that the whole transaction was one to cheat and defraud; and that, even if she were the owner of the property and her husband, as attorney under the power of attorney, had conveyed or sold it, she was estopped as against the Floersheim Company, because the sheep which were sold to the company were her sheep, and she was in fact an undisclosed principal in the transaction.
[1] At the outset of the case we are met with a motion to dismiss by the appellee on the ground that said appeal was not filed in the Supreme Court on or before the return day thereof, in that more than 90 days had elapsed from the time the appeal was taken and the same was filed in the Supreme Court; and, further, on the ground that there was no extension of time for taking such appeal. This...
To continue reading
Request your trial
-
Southern Pac. Co. v. Baum.
...reviewing court, and, so far as the facts are concerned, we review with deference the findings of the chancellor. In Martinez v. Floersheim M. Co., 27 N. M. 245, 199 P. 905, an injunction case, it was held that the finding of the trial court of fraud and collusion in making a transfer of pr......
-
Medler v. Henry.
...announced in the case of Gebby v. Carrillo, supra. The evidence here was not of that character.” The case of Martinez v. Floersheim Mercantile Company, 27 N.M. 245, 199 P. 905, 906, involved the question of fact as to whether or not the transfer of certain property to appellant by her husba......
-
Weeks v. Bailey
...the trial court, and, if so, we are unable to say that such consideration was unwarranted either in law or in fact. See Martinez v. Floersheim, 27 N. M. 245, 199 P. 905. We therefore conclude that the finding of the court that the deed was delivered is supported by substantial evidence. Hav......
-
Lost v. Phelps Dodge Corp..
...If the trial court recognized them, he had a right to consider them in reaching his conclusion as to the facts. Martinez v. Floersheim Merc. Co., 27 N. M. 245, 199 P. 905. So we cannot say that the case is before us on admitted or undisputed facts. Appellee also contends that the rule invok......