Pugh v. Phelps

• Decision Date: 31 December 1932
• Docket Number: No. 3712.,3712.
• Parties: PUGH et al.v.PHELPS et al.
• Court: New Mexico Supreme Court

37 N.M. 126

19 P.2d 315

PUGH et al.

v.PHELPS et al.

No. 3712.

Supreme Court of New Mexico.

Dec. 31, 1932.

Appeal from District Court, Bernalillo County; Owen, Judge.

Suit by E. H. Pugh and another against W. A. Welty and another. From the decree, defendants appeal; Charles B. Phelps, as trustee in bankrupty of defendants, declared bankrupt pending appeal, being substituted as party appellant.

Affirmed.

Court of equity will not enforce unfair, unequal, and unjust contract.

R. H. Hanna and Fred E. Wilson, both of Albuquerque, for appellants.

O. E. Little, of Roswell, for appellees.

NEAL, J.

This is a suit in equity to require the enforcement of a contract for the exchange of land located in Chaves County, N. M., and belonging to the appellees herein for certain houses and portions of certain lots located in Albuquerque, belonging to the appellants. The complaint was filed in the district court of Bernalillo county on August 14, 1930. It alleged, in substance, residence of the parties, the execution of the agreement to convey and exchange, the terms of the contract of exchange, the ability and offer of the appellees to perform the contract according to the terms thereof, breach of the contract upon the part of the appellants, and asking an accounting for rents which were received or should have been received by the appellants during the time they were alleged to have been in default in performance of the contract. The separate answers filed by the defendants admitted the execution of the contract, denied that Mrs. Welty had acknowledged the same before a notary public, and pleaded fraud in the procurement of the contract, and misrepresentation as to the property which it was claimed released the appellants from performance thereof.

On the issues, thus raised, the cause came for trial on January 16, 1931, and judgment was rendered on January 27, 1931, in favor of appellees. On February 21, 1931, appellees filed a motion to amend the pleadings and decree and to amend the agreement for the exchange of properties, so as to change the word “twenty-one” used in the agreement for exchange of property, in the complaint, and the decree, to the word “two,” when describing the number of the block in which the lots of the appellants were located in Albuquerque, N. M. The court took evidence upon this motion and heard the same on the 14th day of March, 1931, sustained the motion to amend and entered its order accordingly.

Appellants reserved proper exceptions to the different rulings by the court, complained of, and to the decree as originally entered, and as finally modified. From the decree as modified, this appeal is taken.

Since the cause has been pending on appeal here, it appears that the appellants W. A. Welty and Annie B. Welty have been declared bankrupts by the United States District Court for the District of New Mexico, and that an order of this court has been made upon the petition of Charles B. Phelps, trustee in bankruptcy, of the estate of W. A. Welty and Annie B. Welty, substituting Charles Phelps, trustee in bankruptcy of the estate of appellants, party appellant, and that this cause proceed in the name of Charles B. Phelps, as trustee, in bankruptcy, of the estate of W. A. Welty and Annie B. Welty. The facts will be stated during the course of this opinion.

The first point presented by appellants is “that the court erred in correcting the final decree and all pleadings over the objections of appellants.”

Considering, first, the question as to the amendment of the decree itself:

Section 105-801, Comp. St. 1929, provides: “Any judgment, or decree, except in cases where trial by jury is necessary, may be rendered by the judge of the district court at any place where he may be in this state, and the district courts, except for jury trials, are declared to be at all times in session for all purposes, including the naturalization of aliens. Interlocutory orders may be made by such judge wherever he may be in the state on notice, where notice is required, which notice, if outside of his district, may be enlarged beyond the statutory notice, for such time as the court shall deem proper. Final judgments and decrees, entered by district courts in all cases tried pursuant to the provisions of this section shall remain under the control of such courts for a period of thirty days after the entry thereof, and for such further time as may be necessary to enable the court to pass upon and dispose of any motion which may have been filed within such period, directed against such judgment; Provided, that if the court shall fail to rule upon such motion within thirty days after the filing thereof, such failure to rule shall be deemed a denial thereof; and, Provided further, that the provisions of this section shall not be construed to amend, change, alter or repeal the provisions of sections 4227 (105-843) or 4230 (105-846), Code 1915.”

In referring to the effect of this section, this court said in Kerr v. Southwest Fluorite Company et al., 35 N. M. 232, 294 P. 324, 325: “The motion to vacate was interposed less than one year and more than 60 days after entry of judgment. It was therefore not maintainable under 1929 Comp. § 105-801, which restored to district courts, during the period of 30 days, the control which they formerly had over their judgments during term time; which control had been held destroyed as the effect of abolishing terms of court except for jury cases. Fullen v. Fullen, 21 N. M. 212, 153 P. 294.” See, also, to the same effect, Gilbert v. New Mex. Const Co., 35 N. M. 262, 295 P. 291.

[1] Since it appears from the record in this case that the motion to amend the judgment was filed within thirty days after the rendition thereof, and was decided by the court within thirty days from the filing thereof, we think the court acted within its authority, and that at the time the motion amending the judgment was sustained and the judgment amended, the court had full control of its judgment and jurisdiction and authority even upon its own motion to make any change, modification, or correction thereof which it deemed proper under the circumstances. Cases supra, and note 10, A. L. R. 556.

The cases cited to us by counsel for appellant, where amendments to judgments were sought, after the term of court at which they were rendered, are of little aid here, since in the case at bar the court had never lost control of the case.

[2] Considering, secondly, the question as to the amendment of the pleadings, if we consider the order as in effect setting aside the judgment rendered on January 27, 1931, and thereupon permitting the amendment as a trial amendment to the complaint, the provisions of section 105-605, Comp. St. 1929, would be applicable.

If the order is considered as an amendment of the decree of January 27, 1931, and as permitting an amendment to the complaint after judgment, and all parties seem to have treated it as such, though this section would seem to apply to “final” judgments, as distinguished from judgments that had not passed from the control of the court, section 105-611, Comp. St. 1929, would apply. It is as follows: “After final judgment rendered in any cause, the court may, in furtherance of justice, and on such terms as may be just, amend in affirmance of such judgment, any record,...