Rice v. Schofield

Decision Date11 January 1898
Citation9 N.M. 314,51 P. 673
PartiesRICE et al.v.SCHOFIELD et al.
CourtNew Mexico Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Bernalillo county; before Justice N. C. Collier.

Action by A. W. Rice and others against John W. Schofield, receiver, and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

Where a paper purporting to be a “bond” filed in a cause pending the hearing, conditioned to answer any judgment that might be recovered against the principal, did not appear to have been acknowledged before the court or judge, and the persons purporting to be sureties on the bond were not before the court, were not parties to the cause, nor given any notice of the proceedings against them, a judgment against such persons was unauthorized and erroneous.

Childers & Dobson, for appellants.

A. B. McMillen, for appellees.

BANTZ, J.

Leaving out of question the sufficiency of the notice given by the master to bring the parties before him, and assuming that he made a mere clerical mistake in reporting that he began taking the testimony on the 25th of October, instead of the 31st, his record discloses that, while adjournments were had from time to time until November 4th, there is none on or after that date, and yet the further taking of testimony was resumed November 11th (written October 11th, but probably another clerical mistake), when Bullock and Champion testified. There was no adjournment made to the 11th, nor was there any notice given to the parties in interest that such taking of testimony would be resumed, nor did they waive it by an appearance. Without such adjournment, notice, or appearance it was clearly error to receive such testimony. Parties cannot be expected to know, at their peril, that testimony may be taken at the master's office, when neither an adjournment nor notice advises them of it.

2. It appears that, pending the hearing, a paper purporting to be a bond to answer any judgment Champion might recover, was “filed” in the cause, and, after the master's report was confirmed, the court rendered judgment against the persons purporting to be sureties on the bond. The bond does not appear to have been acknowledged before the court or judge. It is manifest that these persons never were in any sense before the court. They were not parties to the cause, and were not given any notice of the proceedings against them. If the signatures were forgeries, or if the paper had never been...

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5 cases
  • Dye v. Crary
    • United States
    • New Mexico Supreme Court
    • 2 Marzo 1906
    ...case of Crary v. Field (N. M.) 61 Pac. 118, the former decision of this court when this case was here before on appeal (Rice v. Schofield, 9 N. M. 314, 51 Pac. 673) so far as it states the law, is the law of the case, and will not be reviewed by this court on this hearing. This seems to be ......
  • Valdez v. Herrera., 4809.
    • United States
    • New Mexico Supreme Court
    • 17 Febrero 1944
    ...his knowledge and consent. For the judgment to be binding would require active participation by the parties to be bound (Rice v. Schofield, 9 N.M. 314, 51 P. 673) and due process of law requires notice and opportunity to be heard before being concluded by a judgment. 33 C.J. 1106. Likewise,......
  • Champion v. Rice.
    • United States
    • New Mexico Supreme Court
    • 31 Agosto 1905
    ...appellant. W. B. Childers, for appellee. MANN, J. This cause has been before this court twice before in different forms. Rice v. Schofield, 9 N. M. 314, 51 Pac. 673; Flournoy et al. v. Bullock et al., 66 Pac. 547. In the latter case a mandate was issued out of this court to the district cou......
  • Flournoy v. Bullock
    • United States
    • New Mexico Supreme Court
    • 1 Octubre 1901
    ...and gave bond for a supersedeas. This appeal was heard in 1898, the case then being entitled Rice v. Schofield, and is reported in 9 N. M. 314, 51 Pac. 673, and the cause was reversed and remanded. On February 9, 1898, there was filed and entered of record in this cause in the district cour......
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