Miera v. State.

• Decision Date: 18 September 1942
• Docket Number: No. 4688.,4688.
• Citation: 129 P.2d 334,46 N.M. 369
• Parties: MIERAv.STATE.
• Court: New Mexico Supreme Court

46 N.M. 369

129 P.2d 334

MIERA

v.STATE.

No. 4688.

Supreme Court of New Mexico.

Sept. 18, 1942.

Appeal from District Court, Colfax County; Livingston N. Taylor, Judge.

Action by Frank E. Miera against the State of New Mexico for loss suffered when plaintiff's sheep became infected with scabies after contact with an infected herd permitted by Sheep Sanitary Board to be moved into Colfax County. From a judgment for plaintiff, defendant appeals.

Affirmed.

There is no distinction between “findings of fact and conclusions of law” and “specific findings of fact and conclusions of law” as used in the Rules of Practice and Procedure. Rules of Practice and Procedure, rule 105-813(a, f).

Fred E. Wilson, Sp. Atty., of Albuquerque, for appellant.

Iden & Adams, of Albuquerque, for appellee.

MABRY, Justice.

Appellee, Frank E. Miera, as plaintiff below and hereafter referred to as plaintiff, brought suit against the State for loss and damage to him as owner of certain sheep resulting from the alleged negligence or failure to perform their duties on the part of the Sheep Sanitary Board, its agent, officers and employees, hereafter called defendant. Plaintiff relies upon Chap. 102 of the Laws of 1941, which Act provides:

“Section 1. Whenever the owner of any sheep in this state shall suffer loss or damage or, during the period from January 1, 1939, to the date when this act becomes effective, shall have suffered loss or damage as a result of the failure on the part of the Sheep Sanitary Board, or any of its agents, officers, or employees to properly perform their duties as prescribed by law or as a result of the negligence of such Board, its agents, officers, or employees, it shall be lawful for such owner, within six months after such loss or damage shall have occurred, or within sixty days after this act becomes effective in the case of loss or damage which occurred prior to such effective date to institute an action in the District Court against the State of New Mexico, and if the Court shall determine that such loss or damage occurred a34above stated, it shall render judgment for the amount thereof in favor of such owner against the State of New Mexico. Such an action shall be governed by the rules of pleading, practice and procedure applying to other civil actions. Service of Process therein shall be made upon the Secretary of the Sheep Sanitary Board. The Attorney General shall represent the State of New Mexico in such actions.

“Section 2. Any judgment obtained against the State of New Mexico pursuant to the preceding section shall be paid by the State Treasurer out of funds in his hands derived from a special tax levy upon the assessed value of all sheep in the State. Such levy shall be made by the Sheep Sanitary Board on or before the first day of August after the entry of such judgment unless prior thereto an appeal is allowed to the Supreme Court and, in case of such appeal, on or before the first day of August after such case is finally determined adversely to the State of New Mexico. The levy shall be made upon order of the Board, which shall be certified to the State Auditor and by him certified to the Boards of County Commissioners of each county. The Commissioners shall include said levy in their annual levies of taxes and such special tax shall be collected in the several counties and paid to the State Treasurer in the manner provided by law for the collection and payment of other state taxes. Such fund shall be kept separately by the State Treasurer and paid out by him for the purposes herein set forth. Such special tax shall be assessed, levied, and collected at the expense of the several counties. The levy herein provided for shall not in any one year exceed 1/2 cent on the dollar of the assessed value of all sheep in the state, but shall be continued from year to year until all judgments obtained pursuant hereto shall have been paid in full.”

The cause was tried to the court without a jury upon the complaint of Miera and answer of the State. Judgment was rendered for Miera in the sum of $4,588.33. Thereafter there was filed on behalf of defendant a motion to vacate the judgment which was overruled. An appeal was granted to this court from the final judgment entered on the 17th day of July, 1941, as well as from the order of court overruling the motion to vacate such judgment, which was entered on the 16th day of October, 1941.

The State of New Mexico, as appellant, by its assignment of errors raises three questions, viz., (1) that the judgment is not supported by substantial evidence and the court erred in overruling demurrer to the evidence made at the close of the case; (2) the court erred in overruling motion to vacate the judgment for the reason that the judgment was irregularly entered in that the court failed to make findings of fact supporting said judgment prior to entry thereof as required by rule 105-813 of the Rules of Pleading, Practice and Procedure; (3) that the statute (Chap. 102, Laws of 1941) under which the action was brought is unconstitutional, and that the complaint based thereupon failed to state a cause of action.

The complaint alleges that early in the year of 1939, plaintiff, the owner of some 900 head of sheep, then in Colfax county, New Mexico, became infected with scabies through contact with a certain herd of sheep belonging to one Frank Jaramillo; that the Jaramillo sheep were, just prior to that time, brought into Colfax county from Taos county “with the permission” of the Sheep Sanitary Board of New Mexico, its officers, agents and employees; that at the time the Jaramillo sheep were moved from Taos county to Colfax county, they were infected with scabies, and that the Sheep Sanitary Board, its agents, officers and employees, were negligent in that they “permitted” said infected sheep to cross over from Taos county into Colfax county thereby resulting in the infection of the sheep of plaintiff; and that after plaintiff's sheep became so infected by contact with the said Jaramillo sheep, that plaintiff was required and compelled by the said Sheep Sanitary Board to dip 700 head of said sheep at such season of the year and during such inclement weather as to endanger the health and lives of said sheep and as a result of such untimely dipping loss was suffered through the death of a large number of such sheep. Damages were claimed for loss of 400 head of such sheep, alleged to have resulted both from such infection and from such dipping.

We first examine the assignment of error challenging the judgment as lacking substantial evidence in support thereof. Appellee argues that negligence on the part of the Sheep Sanitary Board, its officers, agents and employees was established in the following...