Sanchez v. Torres, 3558.
| Citation | 298 P. 408,35 N.M. 383 |
| Decision Date | 11 April 1931 |
| Docket Number | No. 3558.,3558. |
| Parties | SANCHEZ et al.v.TORRES et al. |
| Court | Supreme Court of New Mexico |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Defendant's demurrer to evidence at close, of plaintiff's case, even in nonjury case, admits truth of plaintiff's testimony and all legitimate inferences therefrom.
Demurrer to evidence at close of plaintiff's case admits truth of testimony and all legitimate inferences, even in nonjury case.
Authorization by putative father to insert name in birth certificate as father of illegitimate children held sufficient evidence of general and notorious recognition of paternity, entitling children to inherit (Comp. St. 1929, §§ 38-114, 154-112).
Authorization by putative father to insert his name in birth certificate as father of illegitimate child held sufficient evidence of general and notorious recognition.
Appeal from District Court, Torrance County; Frenger, Judge.
Action by Julian Sanchez and another, by Elena Sanchez, their next friend, against Maria A. de Torres, individually, and Maria A. de Torres and another as executors of the estate of Macario Torres, deceased. From a judgment dismissing the action, plaintiffs appeal.
Reversed, and cause remanded with directions.
Defendant's demurrer to evidence at close of plaintiff's case, even in nonjury case, admits truth of plaintiff's testimony and all legitimate inferences therefrom.
J. Lewis Clark, of Estancia, E. W. Dobson, of Albuquerque, and E. P. Davies, of Santa Fe, for appellants.
George W. Prichard, of Santa Fe, for appellees.
Macario Torres died testate October 30, 1927. He left all his property to Maria A. de Torres, his widow. Julian Sanchez, born June 23, 1921, and Alejandro Sanchez, born June 29, 1924, sons of Elena Sanchez, appearing in this cause as their next friend, sued to establish rights of inheritance. They claim to be illegitimate sons of the deceased (1929 Comp. § 38-114), and that, not having been named or provided for in the will, they are entitled to share in the estate as if their putative father had died intestate (1929 Comp. § 154-112).
The cause was tried to the court. When plaintiffs rested, defendants the widow and executors, demurred to the evidence on numerous grounds. The court ruled on the demurrer in this language: “I will hold on this one point that there is not sufficient evidence on the general and notorious recognition.” It is recited in the judgment: “At the conclusion of said testimony, the attorney for defendants demurred on several grounds to the evidence adduced by the plaintiffs as not being sufficient to sustain the allegations of plaintiffs' complaint, among which was that the plaintiffs had failed to make out their case in that it was not shown that the recognition by Macario Torres, the putative father of the plaintiffs, was general and notorious and that the plaintiffs were his illegitimate children, and the court having heard the arguments of counsel both for the plaintiffs and the defendants on said demurrer, and having duly considered the same, is of the opinion that the demurrer is well taken as to the said Macario Torres not having generally and notoriously recognized said plaintiffs as his children within the requirements of statutes of this state; but, overrules the demurrer as to the other grounds. ***” Judgment of dismissal followed, and plaintiffs have appealed.
Counsel agree that the only question before us is the sufficiency of the evidence of general and notorious recognition.
[1] Appellees consider this a question of fact to be reviewed under the substantial evidence rule. They argue that the trial judge may not and should not have believed some of the testimony. Their position is unsound. They demurred to the evidence. Under the rule well established in this state, even though this was a nonjury case, they admit the truth of all the testimony and of all legitimate inferences therefrom. Union Bank v. Mandeville, 25 N. M. 387, 183 P. 394; Bezemek v. Balduini, 28 N. M. 124, 207 P. 330; Horchheimer v. Prewitt, 33 N. M. 411, 268 P. 1026; Martin v. Village of Hot Springs, 34 N. M. 411, 282 P. 273. So, the question before us is whether, giving full credit to the witnesses, full weight to the evidence, and making proper inferences therefrom, a judgment for the plaintiffs could have been sustained.
Counsel respectively have brought to our attention most of the Iowa and Kansas decisions. Those authorities are of greatest importance...
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