Smith v. Castleman

• Decision Date: 08 December 1969
• Docket Number: No. 8851,8851
• Citation: 81 N.M. 1,1969 NMSC 166,462 P.2d 135
• Parties: Lennie SMITH, Plaintiff-Appellee, v. T. P. CASTLEMAN and Evelyn Castleman, his wife, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 135

462 P.2d 135

81 N.M. 1

Lennie SMITH, Plaintiff-Appellee, v. T. P. CASTLEMAN and Evelyn Castleman, his wife Defendants-Appellants.

No. 8851.

Supreme Court of New Mexico.

Dec. 8, 1969.

[81 NM 1] Palmer & Frost, Farmington, for appellants.

Phillips & Graham, Farmington, for appellee.

OPINION

WATSON, Justice.

J. M. Smith purchased a jeep which was financed through the Southwestern Investment Company. He purchased life insurance to insure payment of the indebtedness. He sold the jeep to defendants Castleman for the sum of $100.00 plus the indebtedness owed to Southwestern by Smith at the time of the sale. Mr. Smith died on January 20, 1968, and the insurance company paid the sum of $859.98 to Southwestern to retire the indebtedness.

On May 17, 1968, Lennie Smith, wife of the deceased, alleging a community interest, brought suit against defendants Castleman for damages or recision. The defendants, by affirmative defense and by objection at the beginning of the trial, pointed out that plaintiff was not a proper party to bring the action. After both parties had presented their witnesses and rested and without further objection by defendants, the court withheld judgment and allowed plaintiff 30 days to secure the appointment of an administrator who would be brought in as plaintiff. After this was apparently done, the parties filed their requested findings and conclusions. The trial court then found the facts set forth in the first paragraph above, together with the contested findings 1, 7, and 8, discussed below, and entered judgment for plaintiff(s) named in the caption of the judgment as: 'Lennie Smith, Administratrix of the Estate of J. M. Smith, and Lennie Smith, Individually.'

Defendants Castleman, now appellants, contend that the trial court erred in allowing the post-trial substitution of a new party plaintiff who was not in existence at the time of the trial. There was, however, no substitution as Mrs. Smith individually still remains a plaintiff. As to her community property interest she may well be a proper party, although not the real party, in interest. Section 29--1--9, N.M.S.A. 1953 Comp. (1969 Supp.).

We find no reversible error in the trial court's action. Rule 21 of the Rules of Civil Procedure (§ 21--1--1(21), N.M.S.A. 1953 Comp.) would authorize such procedure where appellant is not prejudiced by it, and we find no such prejudice here. Although it would have been better to require the joining of an administrator prior to trial, Rule 21, supra, (which is similar to the Federal Rule) permits this at any stage of the action. In Mullaney v. Anderson, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458 (1952), plaintiffs with standing were brought in while the case was in the Supreme Court on appeal, and in State ex rel. Skinner v. District Court, 60 N.M. 255, 291 P.2d 301 (1955), we permitted heirs of the decedent to be brought in after appeal and after remand to the district court.

The court's findings which appellants contend are not supported by substantial evidence are:

'1. Lennie Smith was the lawful wife of J. M. Smith at the time of his death and has qualified as administratrix of his estate.' (Emphasis added.)

'7. Defendants herein have not paid the purchase price to J. M. Smith, his representative of estate, as agreed.

'8. The unpaid balance of the purchase price is $859.98.'

Appellant is correct that there is no evidence to support the finding that Lennie Smith is the administratrix of the estate of J. M. Smith. This no doubt was through inadvertence, but we are found by the record before us. Richardson Ford Sales v. Cummins, 74 N.M. 271, 393 P.2d 11 (1964).

There is, however, substantial evidence to support the court's findings number 7 and number 8 set forth above. The purchase price included the payment by the purchaser of the balance owed to Southwestern Investment Company. There was conflicting evidence as to whether the application of the proceeds of the life insurance policy were discussed. Mr. Wooten, Loan Manager of Southwestern, testified that his company was the beneficiary of the policy on Mr. Smith's life. He first said that the premium of $20.88 was received from the insured on December 6, 1966 at the time of the purchase, but on cross-examination he said...