Schaefer v. Whitson.

• Decision Date: 08 September 1927
• Docket Number: No. 3065.,3065.
• Citation: 32 N.M. 481,259 P. 618
• Parties: SCHAEFERv.WHITSON.
• Court: New Mexico Supreme Court

32 N.M. 481

259 P. 618

SCHAEFER

v.WHITSON.

No. 3065.

Supreme Court of New Mexico.

Sept. 8, 1927.

Syllabus by the Court.

In replevin of automobile, it being alleged and denied that defendant bought it with knowledge that plaintiff held title under conditional sale contract, and proof of knowledge being essential to recovery, judgment for plaintiff in the absence of such proof violates a fundamental right which this court will protect, though the question is first raised on appeal.

Additional Syllabus by Editorial Staff.

Where conditional sale contract of automobile was not recorded, under Laws 1923, c. 8, it was void as to purchasers for value without notice.

Where conditional sale contract was not recorded under Laws 1923, c. 8, seller replevying automobile sold from purchaser from his buyer had burden to establish knowledge of conditional sale.

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

Replevin by Emma C. Whitson, trading under the name of the Whitson Music Company, against W. A. Schaefer. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

See, also, 241 P. 31.

Seller replevying automobile sold under unrecorded conditional contract must prove purchaser from buyer had knowledge. Laws 1923, c. 8.

Thomas J. Mabry, of Albuquerque, for appellant.

George S. Klock and M. J. McGuinness, both of Albuquerque, for appellee.

WATSON, J.

Plaintiff, suing in replevin for the recovery of an automobile, alleged in her complaint that, being the owner of it, she made a written contract in September, 1923, to sell it to one Shepard upon payments, retaining title in herself until the payments should have been made; that in April, 1924, Shepard sold and delivered the car to defendant; and that he took the car, with knowledge of the contract and of Shepard's default in the payments. Defendant, by answer, denied that he bought, received, or took the car “with knowledge of any claim, mortgage, lien, or contract of the plaintiff concerning said automobile.”

The cause was set for trial, and defendant failed to appear. A jury was impaneled and evidence introduced. At the close of the evidence the jury, by direction of the court, returned a verdict for plaintiff, assessing the value of the property at $500. Judgment was entered pursuant to the verdict. Motions for a new trial and to vacate the judgment were interposed and overruled, and this appeal was taken.

[2][3] The only error urged in this court is that the evidence fails to support the judgment. It is pointed out that there was no evidence whatever to prove the fact alleged by the complaint and denied by the answer, that appellant took the car with knowledge of appellee's rights. This, of course, was an essential fact, since, under chapter 8, Laws 1923, the conditional sales contract, not having been recorded, was void as against purchasers for value without notice.

[1] Appellee does not contend that there was any proof of knowledge on the part of appellant, and the record shows that there was none. She contends, however, that the error, not having been brought to the attention of the trial court by exception or otherwise, is unavailable here. She also contends that there was no sufficient denial of knowledge to put her to proof of the fact. The latter contention, however, is without merit.

Laws of 1917, c. 43, § 37, provides as follows:

“Exceptions to the decisions of the court upon any matter of law arising during the progress of a cause must be taken at the time of such decision and no exceptions shall be taken in any appeal to any proceeding in a district court except such as shall have been expressly decided in that court; provided, that no exception shall be required to be reserved in the trial of equity cases or cases before the court in which a jury has been waived.”

This section has been many times considered by this court. Appellant relies upon the leading case of State v. Garcia (on rehearing), 19 N. M. 421, 143 P. 1012. The present Chief Justice, speaking for the court, there said that this section precludes a party from insisting upon relief as to matters not decided by the trial court because not brought to his attention, but that the statute does not affect the inherent power of this court to see that a man's fundamental rights are protected in every case. The fundamental right involved in that case was the right not to be deprived of liberty upon uncontradicted evidence affirmatively showing innocence.

In a later opinion of this court, also written by Chief Justice Parker, it was held, upon the same principle, that a judgment quieting title upon a void tax deed violated a fundamental right which this court should intervene to protect, even though the question...