Pankey v. Bank
| Decision Date | 04 December 1939 |
| Docket Number | No. 4375.,4375. |
| Parties | PANKEYv.HOT SPRINGS NAT. BANK. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Sierra County; Eugene D. Lujan, Judge.
Suit by Joseph L. Pankey against the Hot Springs National Bank to subject the assets in the hands of the defendant to the payment of a judgment in favor of the plaintiff, praying a discovery and accounting by reason of the allegations that the defendant was the successor to plaintiff's judgment debtor. From an adverse judgment, the plaintiff appeals.
Judgment reversed, and cause remanded for further proceedings.
That portion of statute, dealing with dismissal of a suit with prejudice for failure to prosecute it for a period of two years, providing that no pending action or proceeding shall be dismissed under the provisions thereof until 90 days from and after statute's effective date, is void as to an action pending at effective date of statute as violating the section of the Constitution providing that no act shall affect the right or remedy of either party, or change the rules of evidence or procedure in any pending case. Laws 1937, c. 121; Const. art. 4, § 34.
E. L. Medler and Wm. A. Gillenwater, both of Hot Springs, for appellant.
E. D. Tittmann, of Hillsboro, and Mechem & Hannett, of Albuquerque, for appellee.
The appellant filed a suit against the First National Bank of Hot Springs, and the Hot Springs National Bank (appellee), on November 9, 1932. On February 10, 1934, a voluntary non-suit and dismissal was taken as to the Hot Springs National Bank in that suit. The action then proceeded against the First National Bank of Hot Springs, which at that time was defunct and not carrying on business, its assets and business having been taken over by the Hot Springs National Bank. On February 28, 1934, a judgment was recovered in that suit against the First National Bank of Hot Springs. That judgment was affirmed by this court in Pankey v. First National Bank of Hot Springs, 40 N.M. 270, 58 P.2d 1186. Pending the appeal an execution was issued, and on March 22, 1934, said execution was returned nulla bona. On December 18, 1934, the judgment creditor in the judgment against the First National Bank of Hot Springs filed what is asserted to be a creditor's bill to subject the assets in the hands of the defendant (appellee) Hot Springs National Bank to the payment of the aforesaid judgment, praying a discovery and accounting by reason of the allegations that the Hot Springs National Bank was successor to the First National Bank of Hot Springs, having been organized for the purpose of taking over the business of the First National Bank.
On January 15, 1935, the defendant, Hot Springs National Bank, demurred to the complaint on the ground that said complaint fails to state a cause of action in that it failed to state facts to show any fraud was committed by either the First National Bank or the defendant Bank in the purchase of the former Bank's assets by the latter Bank; that the complaint showed that the plaintiff was guilty of laches; that the allegations failed to show equity, and for other reasons. On April 26, 1935, the demurrer was sustained “insofar as it is directed against the allegations of the complaint designed to give to this court equity jurisdiction, and that the plaintiff is left to his remedy at law.” Apparently no further action was taken with respect to the pleadings or order sustaining the demurrer, and on June 3, 1935, the defendant Hot Springs National Bank filed its answer. On June 26, 1935, plaintiff filed a motion for permission to inspect records of the First National Bank of Hot Springs. On July 15, 1935, plaintiff moved for an order to take oral testimony of a witness. The record does not disclose anything done in the case thereafter until March 19, 1937, when the defendant filed a motion to dismiss the complaint for want of prosecution. It is asserted by appellant that at about this time Walter C. Cochrane and Joseph Gill, attorneys for plaintiff, departed this life, and E. L. Medler, an attorney of Hot Springs, New Mexico, entered his appearance for the plaintiff in place and stead of Joseph Gill and Walter C. Cochrane.
On August 3, 1937, defendant filed a motion for judgment on the pleadings, stating as cause therefor that it had on the 3rd day of June, 1935, filed its answer wherein it was alleged under oath that the plaintiff had discovered the alleged fraud upon which the action is based on the 30th day of March, 1930, and that plaintiff's action was not filed until the 18th day of December, 1934, and that to said answer the plaintiff had not filed any reply. Neither the motion to dismiss for want of prosecution nor the motion for judgment on the pleadings was ruled upon by the court. On September 16, 1937, a few days after the effective date of Ch. 121, L. 1937, if effective as to pending actions, defendant-appellee filed a motion to dismiss plaintiff's complaint and...
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Pankey v. Bank
...and would be considered as such by reviewing court, notwithstanding that it was intermingled with conclusions of law. See, also, 44 N.M. 59, 97 P.2d 391. E. L. Medler, of Hot Springs, and Whatley, Garland & Weir, of Las Cruces, for appellant. Edward D. Tittmann, of Hot Springs, and Mechem &......