Shelley v. Norris, No. 7294
| Docket Nº | No. 7294 |
| Citation | 1963 NMSC 193, 73 N.M. 148, 386 P.2d 243 |
| Case Date | October 28, 1963 |
| Court | Supreme Court of New Mexico |
Page 243
Shelley, Deceased, Plaintiff-Appellee,
v.
Leola NORRIS, Formerly Leola Lewis, Defendant-Appellant.
Page 244
[73 N.M. 149] E. Forrest Sanders, William Bivins, Las Cruces, for appellant.
J. Wayne Woodbury, Silver City, for appellee.
NOBLE, Justice.
Defendant has appealed from a judgment ordering her to execute all necessary instruments to transfer to plaintiff a liquor license, found by the court to be held by her as trustee for plaintiff.
[73 N.M. 150] Edwin Shelley individually commenced the action, but died prior to trial of the cause. His widow and two children were substituted as plaintiffs after it was suggested that the Shelley estate had been closed and the administratrix discharged.
The pertinent facts found by the trial court are that Edwin Shelley and his wife leased 'Cliff Tavern,' located in Cliff, New Mexico, to Barlow and Witte, in 1945, by a written lease which was lost. Barlow and Witte transferred te lease and liquor license to Claude Lewis and Leola, his wife. Upon divorce of the Lewises and pursuant to the decree, Claude Lewis transferred his interest in the license to his wife, now Leola Norris, the defendant in this action. That transfer was approved by the Chief of Division of Liquor Control as was a subsequent transfer of location of the license.
The court found that the lease provided for reassignment of the liquor license to the lessors upon termination of the lease and that defendant, at all times material, knew of the requirement for reassignment of the license and agreed to be bound thereby. The lease terminated March 1, 1958. Defendant refused to transfer the license back to Edwin Shelley, and this action followed.
Defendant (appellant) has grouped her points 1, 2, 3, 4, 9 and 10 under a single argument, asserting error in denying a motion to dismiss the complaint (1) for lack of jurisdiction because of the absence of the Director of Division of Liquor Control, claimed to be an indispensable party, and (2) because the court lacks power to transfer a liquor license.
Defendant asserts that the Chief of Division of Liquor Control is an indispensable party to any proceeding seeking the issuance or transfer of a liquor license because Sec. 46-5-16, N.M.S.A.1953, requires approval by the director to an effective transfer of a license.
Defendant appears to argue that since the transfer of the license to defendant and her subsequent change of location were approved by the director, this action is an attack upon the validity of a license issued or approved by the Division; amounts to a substitution of the court's judgment for that of the administrative officer charged by law with the duty; and, that the leasing of a liquor license involves a matter of public policy requiring passage thereon by the Chief of Division of Liquor Control. It is asserted that Burguete v. Del Curto, 49 N.M. 292, 163 P.2d 257; Swayze v. Bartlett, 58 N.M. 504, 273 P.2d 367; and American Trust and Savings Bank of Albuquerque v. Scobee, 29 N.M. 436, 224 P. 788, require the presence of the Chief of Division as an indispensable party. We cannot...
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1998 -NMCA- 112, Diversey Corp. v. Chem-Source Corp., CHEM-SOURCE
...Page 337 for review. See Rule 12-216 NMRA 1998. The party claiming error must have raised the issue below clearly, see Shelley v. Norris, 73 N.M. 148, 152, 386 P.2d 243, 245 (1963), and have invoked a ruling by the court, see Rule 12-216(A), thereby giving the trial court an opportunity to ......
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Holman v. Oriental Refinery, No. 7537
...20(1) (Sec. 21-2-1(20)(1), N.M.S.A.1953). Entertainment Corporation of America v. Halberg, 69 N.M. 104, 364 P.2d 358; Shelley v. Norris, 73 N.M. 148, 386 P.2d 243. Reed v. Fish Engineering Corporation, supra, relied on by employer is not Under its third point employer asserts that the court......
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City of Albuquerque v. Chapman, No. 7746
...the issue was not raised below and, therefore, cannot be considered by us for the first [76 N.M. 170] time on appeal. Shelley v. Norris, 73 N.M. 148, 386 p.2d The next point to be noticed relates to the offsetting of benefits. It is the appellants' position that benefits to a remaining trac......
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Maryland Cas. Co. v. Foster, No. 7770
...from that adopted below in connection with any such matter or claim. Marquez v. Marquez, 74 N.M. 795, 399 P.2d 282; Shelley v. Norris, 73 N.M. 148, 386 P.2d 243. Compare Citizens Finance Co. v. Cole, 47 N.M. 73, 134 P.2d It follows from what has been said that the judgment appealed from is ......
-
1998 -NMCA- 112, Diversey Corp. v. Chem-Source Corp., CHEM-SOURCE
...Page 337 for review. See Rule 12-216 NMRA 1998. The party claiming error must have raised the issue below clearly, see Shelley v. Norris, 73 N.M. 148, 152, 386 P.2d 243, 245 (1963), and have invoked a ruling by the court, see Rule 12-216(A), thereby giving the trial court an opportunity to ......
-
Holman v. Oriental Refinery, No. 7537
...20(1) (Sec. 21-2-1(20)(1), N.M.S.A.1953). Entertainment Corporation of America v. Halberg, 69 N.M. 104, 364 P.2d 358; Shelley v. Norris, 73 N.M. 148, 386 P.2d 243. Reed v. Fish Engineering Corporation, supra, relied on by employer is not Under its third point employer asserts that the court......
-
City of Albuquerque v. Chapman, No. 7746
...the issue was not raised below and, therefore, cannot be considered by us for the first [76 N.M. 170] time on appeal. Shelley v. Norris, 73 N.M. 148, 386 p.2d The next point to be noticed relates to the offsetting of benefits. It is the appellants' position that benefits to a remaining trac......
-
Maryland Cas. Co. v. Foster, No. 7770
...from that adopted below in connection with any such matter or claim. Marquez v. Marquez, 74 N.M. 795, 399 P.2d 282; Shelley v. Norris, 73 N.M. 148, 386 P.2d 243. Compare Citizens Finance Co. v. Cole, 47 N.M. 73, 134 P.2d It follows from what has been said that the judgment appealed from is ......