Joyce-Pruitt Co. v. Dexter State Bank

ON MOTION POR REHEARING.

ROBBR.TS, J.

Counsel for appellant has filed a motion for a rehearing, supported by an acrimonious brief, in which he asserts that the doctrine of law announced by the court is preposterous, and that the court failed to read the record. The burden of his complaint now seems to be that the court committed a grievous error in not giving the bank credit for $107.16, which it alleged that it had paid to Martin and Sweeney, alleged to have held a chattel mortgage on four head of horses. He now asserts that the evidence shows that Nelson Bros, authorized this payment, and further that the mortgage was valid and binding.

First, as to the accusation made by counsel that the court failed to read the record: The record was xead with great care by the writer of the former opinion. It fact it was necessary to read the record in full in order to arrive at any intelligent understanding as to the facts in the case. Appellant’s assignments of error were as follows:

“(1) The court erred in rendering judgment against the appellant upon its answer filed herein.
“(2) The court erred in rendering judgment against the appellant in favor of said appellees.
“(3) The court erred in rendering judgment against the garnishee herein, for the reason that said judgment is not supported by the evidence.
“(4) That said judgment rendered herein is contrary to law and not supported by the evidence.”

Under the rule announced by this court in the case of Farmers’ Land & Development Co. v. Rayado Land & Irrigation Co., 18 N. M. 1, 133 Pac. 104, the court might well have declined to go into the merits of the ease but, as the appellee • had raised no question as to the sufficiency of the assignments of error, the court kindly refrained from noticing the deficiency of its own motion, and read the record in connection with appellant’s brief, in order to enable it to determine the merits of the controversy.

It is well to state that, in the argument advanced by appellant in support of his claim that the cause should be reversed, the only language that might be construed as advancing the proposition which he now urges in his motion for rehearing is the following:

“Our contention is we did not owe tlie judgment debtor, except a small amount, which has been taken care of in the judgment, and that we should be allowed to set off the amounts as set out in this brief and shown by the evidence.”

In his statement of the facts in the case the only reference to the matter, other than the itemized list of the claims, is as follows:

“The testimony is undisputed that the $107 paid by Martin and Sweeney was by virtue of an existing chattel mortgage and at the express wish of Nelson Bros., given prior to said sale.”

Appellant sets out in his brief on the motion for rehearing excerpts from the testimony which he claims show that Nelson Bros, authorized the bank to pay the $107.16 on the mortgage. The cashier of the bank was on the stand, and he was asked, “Upon whose orders did you pay this $107.16?” His answer was, “That is hard to state partly on Nelson’s, and partly on my own.” The witness further testified that the mortgage was a valid and subsisting lien upon the horses, but did not produce the mortgage, nor did he testify as to the amount called for by the same. The same witness later, however, testified that Nelson Bros, had asked them to place the proceeds of the sale to their credit, less the amount owing the bank under the bill of sale, and that Nelson Bros, themselves be permitted,to check out the money and pay the various claims, and that Nelson Bros, never did consent for the cashier of the bank to pay the claims out of the money’s derived from the proceeds of the sale.

The trial court, in view of the equivocal statement that Nelson Bros, had “partly” authorized them to apply the money on the mortgage, and the unequivocal statement to the effect that they had refused to authorize them to pay out any of the money, evidently elected to believe the latter, and this court is not prepared to say that the trial court was in error in so doing.

Counsel for appellant says that the judgment referred to in the former opinion was a judgment directed against the bank in garnishment, and was not questioned either by the parties or the court below, and that the bank was given credit for this amount. If this is true, appellant has no ground for complaint, because we simply affirmed the judgment of the trial court. From appellant’s brief we took it that he was complaining of a failure ,to allow credit for money paid on a judgment. If we were in error in assuming that the appellant was not given credit for money paid on the judgment, such error was occasioned, not by a failure to read the record, but by a lack of comprehension of the brief of appellant. After carefully going over the record again and re-reading appellant’s original brief, we see no reason to depart from the former opinion, further than to say that the judgment referred to was paid by the bank, and that the bank received credit for the same in the trial of the case below.

For these reasons, the motion for rehearing will be denied and it is so ordered.

Hanna, C. J., and Parker, J., concur.