Sandoval County Bd. of Educ. v. Young.

• Decision Date: 28 August 1939
• Docket Number: No. 4450.,4450.
• Parties: SANDOVAL COUNTY BOARD OF EDUCATIONv.YOUNG.
• Court: New Mexico Supreme Court

43 N.M. 397

94 P.2d 508

SANDOVAL COUNTY BOARD OF EDUCATION

v.YOUNG.

No. 4450.

Supreme Court of New Mexico.

Aug. 28, 1939.Rehearing Denied Oct. 20, 1939.

Appeal from District Court, Sandoval County; Lujan, Judge.

Action in ejectment by the Sandoval County Board of Education against John F. Young to recover possession of a tract of land. From a judgment dismissing the complaint, plaintiff appeals.

Reversed and remanded with instructions.

Where plaintiff submitted requested findings of fact and conclusions of law after trial court had sustained defendant's motion to dismiss complaint, it was trial court's duty to make any relevant fact finding requested by plaintiff that was supported by substantial evidence, and, in making his decision on any requested finding, he should have taken as true all testimony and reasonable inferences flowing therefrom tending to prove that finding and should have disregarded all conflicts and all evidence tending to weaken or disprove it.

Milton S. Seligman, of Albuquerque, for appellant.

M. J. McGuinness, of Albuquerque, for appellee.

BRICE, Justice.

Plaintiff (appellant here) instituted this action in ejectment to recover possession of a tract of land described in the deed conveying it, dated May 31, 1911, as follows: “Situated and being in District No. 20, Cuba, N. M., in the County of Sandoval and Territory of New Mexico, to-wit: Bounded on the north by land of Ursola Segura, on the east by land of Celso Sandoval, on the south by the public road and on the west by a public road. Said portion of land being subject to the foregoing description and boundaries; its extension consisting in length from east to west one acre in legal measurements of the surveyor.”

At the close of plaintiff's testimony the court sustained a motion made by defendant (appellee) to dismiss the complaint upon the ground that plaintiff had not made “a prima facie case.”

[1] Plaintiff requested the court, in writing, to make certain findings of fact, upon the margin of some of which the court marked the word “Adopted,” and upon others the word “Refused.” The trial court filed his decision as required by Sec. 105-813, N.M.Sts.1929; but did not include therein any finding of fact requested by plaintiff; the effect of which was a refusal to make any of plaintiff's requested findings. McDaniel v. Vaughn, 42 N.M. 422, 80 P.2d 417.

The parties agree upon the location of the east and west boundaries of the land in suit. The location of the north boundary, which passed through Segura's land, depends upon the location of the south boundary; which, if located upon the ground, will determine the case.

As there was no public road through, or along the south side of Segura's land, it is contended by plaintiff that there is a latent ambiguity in the description of the land which authorized the introduction of parol testimony to determine the south boundary of the land in question.

[2] The defendant's motion to dismiss the case, made at the close of the testimony, called for a declaration of law, to-wit: Considering only that part of the testimony that supported plaintiff's case, together with all favorable inferences that could be reasonably drawn therefrom, in a light most favorable to the plaintiff- had a case been made that would support a judgment? Telman v. Galles, 41 N.M. 56, 63 P.2d 1049.

[3] In determining this question all of the evidence in the record and all reasonable inferences therefrom, favorable to plaintiff, must be taken as true and all unfavorable to it must be discarded. Mitchell v. Newcastle, 275 Pa. 426, 119 A. 485.

In commenting upon this rule we stated in Merchants Bank v. Dunn, 41 N.M. 432, 70 P.2d 760, 763:

“Upon demurrer to the evidence the demurrant admits as true all portions of the evidence and reasonable inferences flowing therefrom which tend to prove the allegations of the petition. ***

“In the latter case the court does not weigh conflicting evidence. On the contrary, it disregards the conflict and such portions of the evidence as tend to weaken or disprove the issue plaintiff must sustain, and considers as true only such evidence, with its accompanying favorable inferences, as supports the material allegations.”

[4][5] Defendant does not question this rule, but contends that as plaintiff submitted requested findings of fact and conclusions of law after the trial court had sustained the motion to dismiss, it thereby authorized the court to weigh the testimony, as though the case had been submitted for determination upon the evidence before the court. We do not understand that such result necessarily followed plaintiff's request for specific findings of fact and conclusions of law. Sec. 105-813, N.M.Sts. 1929, is mandatory and imposes the duty upon the trial court to make findings of fact and conclusions of law, notwithstanding he may have sustained a demurrer to the evidence or motion to dismiss. Morrow v. Martinez, 27 N.M. 354, 200 P. 1071.

Defendant relies upon Bezemek v. Balduini, 28 N.M. 124, 207 P. 330, where a like question was before this court, in which we stated:

“Appellant contends that such a motion [motion for judgment] was in the nature of a demurrer to the evidence, the reservation therein limiting the court at that time to pass upon the question only as to whether or not the defendant had made a prima facie case. ***

“Under the Mandeville Case, supra [Union Bank v. Mandeville, 25 N.M. 387, 183 P. 394], we think the position of the appellant is well taken, and that such motion as was here made, although by its terms one for judgment, was in effect no more than a demurrer to the evidence, asking a ruling from the court in a matter of law as to the sufficiency of the evidence to sustain defendant's plea or defense in confession and avoidance.

“Appellant, however, cannot avail herself in this court of the erroneous action of the trial judge. She not only failed to raise the point below, and object to the action of the trial judge, but by her request for findings of fact in her favor on evidence adduced, waived any right to take advantage of such erroneous action. At no time was the point raised below that the trial court could not weigh the evidence and find the facts. The trial court refused the findings of the appellant and made those requested by the appellee. No opportunity was given the trial court to pass upon the question as to the effect of the motion for judgment which we are now considering, and the appellant raises the proposition for the first time in this court.”

This court, in Morrow v. Martinez, 27 N.M. 354, 200 P. 1071, 1072, held that, notwithstanding a demurrer to the evidence or motion to dismiss may be sustained, the trial court is required to make findings of fact and conclusions of law upon request. In construing Sec. 105-813, N.M.Sts.1929, the court stated: “It is apparent that this statute imposes a duty upon the court without request to make findings of fact and conclusions of law in every case tried by the court involving questions of fact. It is a right which the successful party has to have the court make such a record as will support the judgment, and it is a right the unsuccessful party has to have the court make such a record as will enable him to review the action if he so elects. *** Although the demurrer to the evidence may for some purposes be held to amount to an admission of the facts which it tends to establish, that admission goes only to the extent of furnishing a rule for determining what the facts in the case are. The court under such circumstances may well assume that the facts shown are true. But this principle does not reach the question at hand. The question is, What are the facts, and what legal conclusions should be drawn from them? To have the court show by the record these matters is a statutory right in all cases tried to the court, and the district court must, when properly requested, comply with the provisions of the law.”

The Bezemek case does not overrule Morrow v. Martinez, supra; indeed its doctrine was in effect recognized, but from the record in the former case it appeared that appellant was a party to the error in that he knew that the trial court was weighing the testimony and did not call its attention to the fact that it was committing error. It is true the court stated, “She not only failed to raise the point below, and object to the action of the trial judge, but by her request for findings of fact in her favor on evidence adduced, waived any right to take advantage of such erroneous action,” which is not very clear. She was entitled to findings of fact based upon that portion of the testimony favorable to her, together with all reasonable inferences which supported the material allegations of her complaint, and this court did not hold otherwise in the Bezemek case. The holding was that the question presented could not be raised for the first time in this court.

[6] But here we have a different case. It was the duty of the trial court to make any relevant finding of fact requested by plaintiff that was supported by substantial evidence; that is, in making his decision upon any requested finding, he should have taken as true all portions of the testimony and all reasonable inferences flowing therefrom, which tended to prove such finding, and have disregarded all conflicts and all evidence which tended to weaken or disprove it. It may be that the court failed to follow this rule and did weigh the testimony, and that plaintiff acquiesced therein, but defendant did not call our attention to any evidence of it. He asserts that “the submission to the trial court of requested findings of fact on the evidence adduced is a waiver under the circumstances of this case, of the objection that the court could only pass upon the legal sufficiency of appellant's evidence and could not pass upon the weight of the evidence nor make findings of fact.” There are no circumstances pointed out in the...