State v. Fernandez Co.
| Decision Date | 16 January 1923 |
| Docket Number | No. 2781.,2781. |
| Citation | 28 N.M. 425,213 P. 769 |
| Parties | STATEv.FERNANDEZ CO. ET AL. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The receipt and acceptance of the amount of a judgment, in full settlement and satisfaction thereof, defeat the right to review such judgment on appeal.
Appeal from District Court, Valencia County; Owen, Judge.
Suit by the State against the Persons, Real Estate, Lands, and Property Described in the Delinquent Tax List of the County of Valencia for the Year 1919. From a judgment for the state for a lesser amount than that claimed, the state appeals adversely to the Fernandez Company. On motion to dismiss appeal. Appeal dismissed.
The receipt and acceptance of the amount of a judgment in full settlement and satisfaction thereof, defeat the right to review such judgment on appeal.
W. J. Eaton, of Socorro, for the State.
Lawrence F. Lee and A. B. McMillen, both of Albuquerque, for appellee.
Suit by the state against delinquent taxpayers. Appellee defended, and, after hearing, the court below rendered judgment for the state in a greater amount than that conceded by the appellee to be due and a lesser amount than contended for by the state. Thereupon appellee paid to the treasurer the amount of taxes found by the court to be due, and obtained receipt in full. Nearly six months thereafter the state appealed from the judgment. Appellee now moves to dismiss the appeal on the ground that the state has accepted the amount of the judgment in full satisfaction of the judgment, and that the appeal, therefore, presents only a moot question.
Appellant admits the general rule to be that, ordinarily, one cannot accept a benefit under a judgment and then appeal from it, where the effect of the appeal may be to annul the judgment (2 R. C. L. 61-63, §§ 44 and 45), but says this case comes within an exception to the rule that, where there is no possibility that the appeal may lead to a result whereby the appellant may recover less than has been received under the judgment appealed from, the right to appeal is unimpaired. R. C. L., supra. But that is not the situation here. The appellee contended in the court below that the amount of the tax justly due was less than the amount of the judgment rendered. Thus, if the judgment were reversed, a new trial might result in judgment for less than the amount already paid. Had the appellee conceded taxes due in the amount of the judgment...
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American Tel. & Tel. Co. of Wyo. v. Walker
...Thus, the holdings in the cases of Wells v. Romero, 22 N.M. 191, 159 P. 1001; Culp v. Sandoval, 22 N.M. 71, 159 P. 956; State v. Fernandez Co., 28 N.M. 425, 213 P. 769; Stae v. Jemez Land Co., 30 N.M. 24, 226 P. 890, and Evarts v. Stovall, 42 N.M. 32, 75 P.2d 154 are not applicable We find ......
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First Nat. Bank of Albuquerque v. Energy Equities Inc., 2769
...The contention that the cross-appeal is moot is without merit. See Schlecht v. Bliss, 271 Or. 304, 532 P.2d 1 (1975); State v. Fernandez Co.,28 N.M. 425, 213 P. 769 (1923). The question is whether plaintiff's cross-appeal fits within the general rule as stated by State v. Fernandez, supra, ......
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1998 -NMCA- 48, Board of Educ., Rio Rancho Public School Dist. v. Johnson
...less than has been received under the judgment appealed from, the right to appeal is unimpaired.' " Id. (quoting State v. Fernandez Co., 28 N.M. 425, 426, 213 P. 769, 769 (1923)). Trustee suggests that the rationale for that exception has been fulfilled here because the School District file......
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Chase v. Chase
...Wife's Appeal on the Merits{14} The New Mexico Supreme Court first announced the benefit of the judgment rule in State v. Fernandez Co., 1923-NMSC-007, 28 N.M. 425, 213 P. 769. In Fernandez Co., our Supreme Court explained that "ordinarily, one cannot accept a benefit under a judgment and t......