Territory v. Mills

• Decision Date: 08 December 1911
• Citation: 16 N.M. 555,120 P. 325
• Parties: TERRITORYv.MILLS et al.
• Court: New Mexico Supreme Court

16 N.M. 555

120 P. 325

TERRITORY

v.MILLS et al.

Supreme Court of the Territory of New Mexico.

Dec. 8, 1911.

Appeal from District Court, Santa Fé County; before Justice McFie.

Action by the Territory of New Mexico against Melvin W. Mills and others. Judgment for plaintiff, and defendant Mills appeals. Affirmed.

Comp.Laws 1897, § 2942, provides that where two or more persons are bound by a contract or by judgment, decree, or statute, jointly or jointly or severally, or severally only, an action thereon may, at the option of the plaintiff, be brought against any or all of them; when any of those so bound are dead, the action may be brought against any or all of the survivors with any or all the representatives of the decedents, or against any or all of the representatives; and a judgment against any one or more of several parties jointly bound shall not be a bar to proceedings against the others. Held that, where a joint judgment was taken by default against the principal and one of the sureties on the bond of a depositary of public funds, such judgment did not bar the territory's right to recover on the bond against the other surety.

See, also, 13 N. M. 174, 81 Pac. 447.

In 1893, the Taos County Bank, organized under the laws of the territory of New Mexico, made application to become a depository of territorial moneys to the amount of $10,000 under section 5, c. 61, of the laws of New Mexico of 1893 (section 255, C. L. 1897), and gave its bond to the territory in the sum of $20,000 with Juan Santistevan and Melvin W. Mills, the appellant herein, as sureties. On November 6, 1903, suit was instituted by the territory on the bond against the principal and the sureties, and judgment was prayed for the sum of $4,304.86, together with interest from the 6th day of August, 1903. The bank and Juan Santistevan defaulted, and a joint judgment was rendered on November 6, 1903, against them in the district court for the amount of $4,367.92. The appellant, Mills, answered the complaint, and, after judgment against him in the district court, appealed to the Supreme Court, and the judgment was reversed (see 13 N. M. 174, 81 Pac. 447), and the cause was remanded to the district court. Mills filed an amended answer setting up as his sole defense that the territory of New Mexico, by its Treasurer, deposited with the said bank a greater sum than $10,000, viz., the sum of $10,020, and at another time that the Territorial Treasurer deposited with said bank the sum of $10,089.52 without the consent or knowledge of the defendant, Melvin W. Mills, surety on said bond and obligation, whereby the risk and liability of the defendant was increased, alleging that thereby the defendant became discharged. A demurrer was interposed to this answer on two grounds: First, that the answer did not state facts which constituted a defense; and, second, that the facts set forth in the answer did not increase the risk and liability of defendant Mills, which, by the terms of the bond sued on, did not exceed the sum of $10,000. The demurrer was sustained by the district court, and the defendant elected to stand upon the demurrer, and judgment was rendered against him for the sum of $5,834.26, from which judgment this appeal was taken.

Julius Staab, for appellant. Frank W. Clancy, Atty. Gen., for the Territory.

ROBERTS, J. (after stating the facts as above).

The appellant has assigned 13 grounds of error by which he attempts to present to this court two reasons for the reversal of the judgment: First, that the judgment rendered against the bank and Santistevan in 1893, on default, was a joint judgment, and that by the election of the territory to obtain a joint judgment against the principal and one of the sureties it lost its right to proceed against the appellant. Second, that the appellant was released from liability because the territory deposited larger sums with the bank than the bond indemnified, without the knowledge and consent of the surety.

[1] 1. The effect of the rendition by the district court of the joint judgment against the bank and Santistevan is not properly before this court for review. The point was never raised in the court below. No plea in abatement was filed, nor does the matter appear to have been in any way called to the attention of the court. This court has frequently held that only such assignments of error can be presented to the appellate court as were brought to the attention of the trial judge so as to permit of their correction by him, and there is a statutory provision also which provides: “No exception shall be taken in an appeal to any proceeding in the district court, except such as shall have been expressly decided in that court.” See Crabtree v. Segrist, 3 N. M. (Gild.) 500, 6 Pac. 202; Chaves v. Lucero 13 N. M. 368, 85 Pac. 233, 6 L. R. A. (N. S.) 793.

[2] But, were the matter properly before the court, we do not believe that it would avail the appellant. Section 2942 of the Compiled Laws of 1897 is as follows: “Where two or more persons are bound by contract or by judgment, decree or statute whether jointly only, or jointly or severally, or severally only, and including the parties to negotiable paper, common orders and checks, and sureties on the same, or separate instruments, or by any liability growing out of the same, the action thereon may, at the option of the plaintiff, be brought against any or all of them; when any of these so bound are dead, the action may be brought against any or all of the survivors with any or all of the representatives of the decedents, or against any or all such representatives. An action or judgment against any one or more of several parties jointly bound, shall not be a bar to proceedings against the others.” By the last sentence it will be noted that a judgment against one of several parties jointly bound shall be no bar to proceedings against the others, and it has been the uniform practice in this territory since this statute was adopted, in 1880, to take judgment against one or more of such parties and to have further proceedings in the same action to obtain judgment against the others. No injustice can result from this practice, as the plaintiff cannot obtain satisfaction upon more than one of such judgments.

Appellant attempts to get away from the effect of this statute by insisting that in the statute the word “contract” does not mean such a thing as a bond. A bond is a contract by specialty and is so recognized by every writer on contracts. Chitty on Contracts (8th Am. Ed.) 3; Bishop on Contracts, § 108; Bouvier's Law Dic. Title Contracts, par. 15.

[3] 2. This brings us to a consideration of the only defense interposed by the appellant, and the only matter properly before the court for consideration. The record discloses that at one time there was a deposit of $20 in excess of $10,000 and at another time a deposit of $89.52 in excess of that sum. There is nothing in the condition of the bond sued on which limits the Territorial...