Spiegelberg v. Mink

• Decision Date: 31 July 1859
• Citation: 1 N.M. 308
• Parties: LEVI SPIEGELBERGv.JOHN H. MINK.
• Court: New Mexico Supreme Court

1 N.M. 308

LEVI SPIEGELBERG

v.JOHN H. MINK.

Supreme Court of the Territory of New Mexico.

July, 1859.

On who performs services for another without intending to charge therefor is not entitled to payment for such services.

*1 APPEAL from the district court for Santa Fe county. The facts appear from the opinion.

R. H. Tompkins, for the appellant.M. Ashurst, for the appellee. By Court, BENEDICT, C. J.:

Mink presented, in the probate court for the county of Santa Fe, a claim against Levi Spiegelberg, as administrator of Elias Spiegelberg, deceased, for the sum of one hundred and twenty dollars, for service as an appraiser of decedent's estate. The probate approved of sixty-three dollars and forty cents of the claim, and rejected the balance. The administrator then appealed to the district court, and, on trial, judgment was rendered against the appellant for the same amount adjudged against him in the probate, and thereupon he appealed to this court. The points made in the cause are few. We deem it proper to notice one matter of practice which the record brings to view. In the district court neither party required a jury. The judge was substituted in the place of the jury, heard the testimony, and found the judgment, or rather the verdict, upon the facts submitted. Spiegelberg excepted to the decision of the court, and tendered his bill of exceptions.

Now, had the cause been tried by a jury, the party, to be placed in a condition to have entitled him to a revision of the facts in this court, should have moved the court below for a new trial, and, upon being overruled, embodied the evidence in a bill of exceptions. No exceptions could have been supported against the judgment of the court, upon the verdict of the jury, until its attention should have especially and formally been called to a re-examination of the correctness of the verdict. So, too, where the judge is substituted for the jury, the party aggrieved should move for a new trial, and the judge be thus required to revise his finding upon the facts in the case. If the motion is carried, the party will then be entitled to his bill of exceptions on the evidence. This will be found to be the usual rule of practice where the courts are permitted to put the judge, by the consent of the parties, in the place of the jury, in trying the facts in a civil action. In this case, such course was not pursued; the appellant only excepted to the judgment of the court. Upon this practice no point has been made before us in this court, and we shall give the parties the full benefit of a revision of their testimony, the same as if it had been brought here in the most regular and commanding mode. The chief arguments have been made in review of the evidence, and our judgment by both parties is expected to be rendered upon such merits as this evidence discloses.

Mink's claim was founded upon alleged services as one of the appraisers of the estate of the deceased Spiegelberg. It was not questioned that he was duly appointed and sworn. The statute provides that “appraisers shall receive at the rate of fifty cents for every hundred dollars until the termination of the appraisement on property left by will as well as property left by intestates:” Rev. Codes, 490.

*2 It appears that Spiegelberg, administrator, made an inventory of the deceased's estate, and the same was filed in probate, amounting to the sum of twenty-four thousand one hundred dollars and fifty-two cents. Five days from the date of said inventory, Mink, with C. P. Clever, sworn appraisers, certify that they had appraised the property specified in the inventory at the same sum of twenty-four thousand one hundred dollars and fifty-two cents. This appraisement appears to have been filed with the probate as the true valuation of the estate, and its correctness was never opposed by the administrator. The latter opposed the justness of Mink's demand upon the grounds, to wit:

1. He never performed the services as appraiser to entitle him to compensation.

2. That he agreed to perform those services without compensation.

The only oral witness was Mr. Clever, the joint appraiser. Some objection was made by counsel for Mink, to the competency of this witness, upon the ground that the appraiser's action being reduced to writing, Mr. Clever could not give verbal testimony as to anything said or done by Mink touching the premises. We think that the court properly admitted the witness to testify, and upon grounds so obvious as not to require further remark in this opinion. Clever's testimony unfolds a state of affairs which calls for our marked condemnation from this place. We are unable to say that any fraud was actually practiced upon those interested in the estate; but the mode of procedure, if permitted to go unrebuked, and should it be repeated, might lead to frauds upon estates, heirs, and creditors, of the most aggravated character. A large portion of the estate consisted of merchandise. Clever testifies that he, the witness, appraised the goods in company with the administrator; that Mink did not invoice the said goods, nor did he render any service in the invoicing; that Mink was probably in the store two or three...