Turknett v. Western Coll. of N.M. Conference of Methodist Episcopal Church

• Decision Date: 07 December 1914
• Docket Number: No. 1685.,1685.
• Citation: 145 P. 138,19 N.M. 572
• Parties: TURKNETTv.WESTERN COLLEGE OF NEW MEXICO CONFERENCE OF METHODIST EPISCOPAL CHURCH, SOUTH.
• Court: New Mexico Supreme Court

19 N.M. 572

145 P. 138

TURKNETT

v.WESTERN COLLEGE OF NEW MEXICO CONFERENCE OF METHODIST EPISCOPAL CHURCH, SOUTH.

No. 1685.

Supreme Court of New Mexico.

Dec. 7, 1914.

Syllabus by the Court.

A judgment was obtained upon a subscription contract for the support of a college, the consideration of said contract being the maintenance of said college at the place designated for the period of 20 years. Subsequent to judgment and affirmance of the same in this court, the college authorities allowed a mortgage to be foreclosed upon the property, quitclaimed its equity of redemption in the same, abandoned the enterprise, and became insolvent. Held, the defendant is entitled to relief in this court against the enforcement of the judgment.

While this court refuses to hold that the ancient writ of audita querela is not still available in this jurisdiction, the better practice is held to be an application to the court by motion for the relief required.

Proceeding by J. Turknett against the Western College of the New Mexico Conference of the Methodist Episcopal Church, South, a corporation, to restrain the enforcement of a judgment affirmed in 17 N. M. 275, 125 Pac. 1085. Execution quashed, and judgment declared unenforceable.

Where after judgment on a subscription was affirmed, the enterprise was abandoned, the judgment debtor was entitled to relief in the Supreme Court.

J. B. Atkeson, of Artesia, for plaintiff.

PARKER, J.

The defendant secured an affirmance in this court of a judgment against the plaintiff. 17 N. M. 275, 125 Pac. 1085. The judgment was upon a subscription contract, the consideration whereof was that the defendant was to establish a Methodist college in or near Artisia, N. M., and to equip, maintain, and operate the same for a period of 20 years. It did erect a building and did maintain a school at the place designated prior to and at the time of the trial in the district court, but the same was not a college, and was devoted to the teaching of the primary grades. Plaintiff alleges that, at the time of the trial he was ignorant of the true facts, and was deceived by the fraud, concealment, and perjury of the defendant's witnesses in that regard. It is further alleged that subsequent to the trial the defendant allowed a mortgage to be foreclosed upon its property, and quitclaimed its equity of redemption therein, and gives out that it has permanently abandoned the said enterprise, that the defendant is insolvent; that it is threatening to enforce the said judgment by execution, and that plaintiff has no remedy except to apply to this court for a writ of audita querela.

[1] 1. We issued an order to show cause, and the defendant has defaulted, having made no return to the order. We may therefore assume the facts as alleged in the verified complaint to be sufficiently established, for the purpose of the proceeding, without further proof.

It appears from the foregoing brief statement that plaintiff's claim to relief rests upon two grounds: First, facts existing prior to and at the trial, viz., the alleged fraud, deceit, and perjury as to the character of the school being maintained by defendant; and, second, facts occurring after the trial, viz., the abandonment of the enterprise by the defendant, thus destroying the consideration for the promise of the plaintiff. Whether the first ground mentioned is available to plaintiff or not, under the facts as pleaded, it is not necessary for us to decide. It may have been the duty of the plaintiff to ascertain for himself the...