Torrez v. Brady

Decision Date23 December 1932
Docket NumberNo. 3715.,3715.
Citation19 P.2d 183,37 N.M. 105
PartiesTORREZ et al.v.BRADY et al.
CourtNew Mexico Supreme Court


Appeal from District Court, Lincoln County; Frenger, Judge.

Suit by Refugio Torrez and another against Robert Brady and others. From a final decree in favor of the plaintiffs, the defendant named appeals.


Purchase by cotenant of outstanding claim to common property, inures to benefit of common estate.

Geo. W. Prichard, of Santa Fé, for appellant.

Hurd, Crile & Webb, of Roswell, for appellees.


This is a suit in partition begun in the district court of the third judicial district, sitting within and for Lincoln county, N. H., on September 5, 1928, by Refugio Torrez and Martin L. Torrez, as plaintiffs, against Robert Brady, William Brady, John Brady, and George Torrez, as defendants. Final decree partitioning the land and setting apart to Refugio Torrez and Martin L. Torrez their proportionate share thereof in severalty was entered on the 7th day of January, 1931, and from this decree Robert Brady appeals.

There appears, in this case, a difference in the spelling of the names of the plaintiffs, appellees. The name Torrez is sometimes spelled, “Torres,” and sometimes spelled “Torrez.” We have no means of knowing the correct spelling of this name. We will therefore spell it as it was spelled in the original petition filed in this cause-“Torrez.”

[1] Appellees file their motion to dismiss the appeal for the reason: (1) That all matters in appeal have been decided by a judgment rendered October 30, 1930; (2) that no new questions are presented that were not decided by the said judgment; and (3) that this appeal is a collateral attack on the judgment heretofore rendered by this court.

The judgment referred to is our judgment entered October 30, 1930, dismissing an appeal from the interlocutory decree entered in this cause by the district court of Lincoln county on April 29, 1930. Torrez et al. v. Brady et al., 35 N. M. 217, 292 P. 901. We there held that decree of the district court of April 29, 1930, was an interlocutory decree and that an appeal therefrom should be taken within twenty days from the filing thereof, section 105-2542, Comp. St. 1929, and, since more than twenty days had elapsed before application for the appeal was made, that no appeal had been properly taken and the appeal was dismissed. It follows that, in so far as the interlocutory decree and proceeding in this cause prior thereto are involved, the status is the same as if no appeal had ever been attempted from such interlocutory decree. The question is therefore presented: Where an appealable interlocutory judgment, order, or decree is entered in a cause and no appeal is taken therefrom within twenty days, as authorized by section 105-2502, Comp. St. 1929, can such decree and the proceeding prior to the entry thereof be considered upon an appeal from a final decree entered in the cause?

This question does not seem to have been considered by this court, since the enactment of the above section in 1917. Previous to that time no appeal could be taken from interlocutory orders or decrees. Huntington v. Moore, 1 N. M. 489; Jung v. Myer, 11 N. M. 378, 68 P. 933; Costilla Land Co. v. Allen, 15 N. M. 528, 110 P. 847; and upon an appeal from a final decree all interlocutory orders and decrees connected with it were reviewable. Canavan v. Canavan et al., 17 N. M. 503, 131 P. 493, Ann. Cas. 1915B, 1064. While there is some diversity of opinion among the courts generally upon this question, we think the better doctrine is, that upon appeal from the final judgment, interlocutory orders or decrees and the proceedings upon which they are based, may be reviewed, even though an appeal might have been taken therefrom at the time entered. This view is supported by the following authorities. Des Moines Savings Bank v. Morgan Jewelry Co., 123 Iowa, 432, 99 N. W. 121; Cawley v. Jean, 189 Mass. 220, 75 N. E. 614; M. A. Seeds Dry-Plate Co. et al. v. Heyn Photo-Supply Co., 57 Neb. 214, 77 N. W. 660; McCarney v. Lightner, 188 Iowa, 1271, 175 N. W. 751; Schuman v. Schuman et al., 217 Mich. 184, 185 N. W. 717; Green Sea Lumber Co. v. Pemberton, 188 N. C. 532, 125 S. E. 119; Buchanan v. Berkshire Life Insurance Co., 96 Ind. 510; Kimbrell et al. v. Rogers, 90 Ala. 339, 7 So. 241; Fales v. Lawson, 51 Hun, 487, 642, 4 N. Y. S. 284; Hyatt v. McBurney, 17 S. C. 143; Rossi v. Caire, 174 Cal. 74, 161 P. 1161; City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352; Chicago Horseshoe Company v. Gostlin, 30 Ind. App. 504, 66 N. E. 514; Lesure Lumber Co. v. Mutual Fire Insurance Co., 101 Iowa, 514, 70 N. W. 761; Hess v. Hess, 108 Va. 483, 62 S. E. 273.

In Hess v. Hess, 108 Va. 483, 62 S. E. 273, 274, supra, the court says:

“A preliminary question is raised by the appellee, who contends that the decree appealed from was final as to the right of appellant to the allowance ascertained by the commissioner, and that no appeal will lie therefrom after one year from May 12, 1906, the date of the decree disallowing such claim.

“This contention is without merit. Conceding that the decree was such as the appellant had the right to appeal from, he was not obliged to appeal, because it was an interlocutory decree. By virtue of section 3454 of the Code of 1904 a party is given the right to appeal from certain interlocutory decrees if he desires to do so. He is, however, not bound to appeal from such decrees at the time they are rendered, but may do so at any time within a year after a final decree has been rendered in the cause, provided all the other requisites for an appeal exist. Southern Ry. Co. v. Glenn's Adm'r, 98 Va. 309, 36 S. E. 395.”

This seems to us the more reasonable rule, as these intermediate orders, of necessity, are, in effect, carried forward and enter into, the final decree, and we can see no necessity or reason to require a cause to be appealed by piecemeal. We cannot think that, by the enactment of section 105-2502, the Legislature intended to do more than permit one aggrieved by such interlocutory decree to have the benefit of a speedy appeal and hearing thereon, if he so desired, or, if he desired otherwise, he might await final decree in the case and by one appeal have reviewed the entire proceedings. The Legislature could not, we think, have intended to put upon litigants the increased expense, and upon the appellate courts the increased labor, of successive appeals in the same case to settle and determine their rights. Any other construction would place upon the members of the bar of the state the responsibility of determining at once whether any given order in the course of a cause was appealable, and, if in doubt, would require them to put clients to the expense of appealing from the order, rather than imperil their interest by risking a later determination that such appeal should have been taken.

The case cited by counsel for appellee as authority supporting their view on this subject, White v. Van Patten, 280 Ill. 215, 117 N. E. 472, we do not consider applicable in this jurisdiction, for the reason that in that case the court held that the decree determining the interest of the parties in a partition suit was under the Illinois practice a final decree, while in this state it is settled that such a decree is interlocutory and may be modified or changed by the court at any time before final judgment, Montoya v. Unknown Heirs of Vigil, 16 N. M. 349, 120 P. 676, and, in any event, that it is an interlocutory decree, and not final, is the law of this case, Torrez v. Brady, supra.

We therefore conclude that the motion to dismiss the appeal must be denied.

The land involved in this suit was owned by Ygnacio Torrez, who died about the year 1890, and left surviving him his widow, Manuelita L. Torrez, and three sons, Refugio Torrez, and Martin L. Torrez, the appellees in this cause, and George Torrez. Thereafter, and in the year 1891, Manuelita L. Torrez married Robert Brady, the appellant here. Thereafter, on the 26th day of January, 1909, the lands which had belonged to Ygnacio Torrez at his death, were partitioned among the heirs at law, and the land involved in this suit was decreed to be the separate property of Manuelita L. de Brady, and it is stipulated in this cause that the land here involved was the separate property of Manuelita L. Torrez at the time of her marriage with Robert Brady. Thereafter, in 1918, Manuelita L. de Brady died, and left surviving her, her husband, Robert Brady, appellant here, William Brady and John Brady, children of her marriage to Robert Brady, and Refugio Torrez, Martin L. Torrez, and George Torrez, children of her marriage to Ygnacio Torrez.

The cause was tried, and by interlocutory decree of April 29, 1930, the interest of Robert Brady in said lands was declared to be an undivided one-fourth thereof, and the interest of each of the children of Manuelita L. de Brady, to be an undivided three-twentieths thereof, ordered the partition of the same, and appointed commissioners to partition. Thereafter, a final judgment in partition was entered in the cause, setting apart, separately, to the plaintiffs herein, Refugio Torrez and Martin L. Torrez, certain portions of the land in the final decree described.

Appellant, Robert Brady, contends, first, that he acquired the title to the lands, in fee, by a verbal purchase thereof from his wife, accompanied by delivery of possession thereof to him, during the time they were married and living together as husband and wife. The court found this issue against the appellant. Counsel in his brief presupposes that such verbal purchase and livery of seizen was clearly established, and presents his argument that payment of the purchase price, followed by delivery of possession, and the making of improvements, are sufficient to take the case out of the operation of the statute of frauds and vest the title to the property in appellant.

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