Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1916-04-23
CITY BANK CIEARIN0S,
Yesterday
S50,0S4.11.
Ciearlngs for the Week.
$416,t05.40.

knew OF these facts and had the en-
tlre correspondence. or copies there
or. in his possession at the time the
SUIT was started, or at the latest when
the case was tried A demurrer to
the complaint, filed in this case, was
overruled and the defendant an
sWered, averring, among other things
that the claim on which the suit was
passed had been fully paid off, settled
and discharged. The plaintiffs case
was apparently based upon the props
osition that the Meyers company.
through its officers, had ratified and
assumed this contract or claim of
Shaw a. CO., and at the trial introduced
| evidence to this effect. During the
course of the trial, the receipt Of Err
nest Meyers to the Meyers company
was shown to said Ernest Meyers
Wfen ne was on the witness
stand. and the following testi-
mony was given in regard to it, as
shown by a certified copy of the
stenographer's notes:
tCross-examination of Mr. Meyers
by Mr.. Wood)
'Q.--Major, is that your sigma
ture tshowing witness a paper)?
'A.-Yes, sir.
'Q.--You wrote that, did you? |
mean you wrote the signature?
Al wrote the signature.
Mr.. Wood: ask to have this pa
per marked for Identification
Thereupon the paper shown the
witness Is marked exhibit for iden-
tification.
Mr.. Wood We offer in evidence
the paper heretofore identified by the
witness Meyers and marked as exhib-
it 4 for Identification
Mr.. Miller: We object to this It
should have been attached to the an
swer In this case. The answer shows
that they-I call the courts attention
to the answer
Mr. Wood The answer pleads
payment and this is proof of it,
Mr.. Miller: II they are going to
make any use of any such statement
as that, we are entitled to have ii at
tached to the answer as an exhibit
Mr. Wood: We are not founding
an action or defense on that paper. 1t
is mere proof of payment. Like any
other item of proof,
1.-The court: What Is the an
swer? Pleads payment?
Mr.. Wood Payment is pleaded,
yes. sir.
The court: I think that is allow
able.
MIR. Miller: Exception.
Thereupon the paper referred to
IL received in evidence as exhibit T.
Mr.. Wood. We rest.
Upon motion by the defendants IS
attorney for judgment. the court di-
rected the jury to return a verdict fer
the defendant. The motion for new
trial was filed by the plaintiff, and
later amended, but was not passed
upon until the term at which the case
was tried had expired. A new trial
was then granted, but on motion of
the defendants attorney, Mr.. Wood,
alleging that the court was without
jurisdiction to grant a new trial after
the term at which the trial was had
had expired, the court being fully con-
yinced it was without jurisdiction, set
aside the order granting the new trial.
Thereupon the present motion to set
aside the verdict on the ground of
fraud was filed
'"rhe case has been elaborately
argued and briefs have been submit
ted on each side, together with copies
Of the correspondence between par
ties to the suit and Shaw & Company.
The gravamen Of the charge is that
the attorney for the defendant Fran
els Il. Wood, knowing under what CIR
cumstances the receipt was obtained
and that no value had been paid for
1t, in order to deceive the court and
have q verdict directed In his favor,
represented to the court that the re-
ceipt in question was payment, when
L., t,.,tt i'm, N NOT hut
had been obtained under the circum-
stances outlined above. and that said
attorney thereby deceived the court
and perpetrated fraud upon 1t.
THE charge Is q serious one, and
the court has given the matter much
consideration and study. Realizing
that such charge, If sustained, IS in
my opinion sufficient ground for dis
barring an attorney who Is guilty OF
it, / have gone into the matter with
great care. The verdict was directed
for the defendant when it appeared
to the court that the plaintiff had
given q receipt in full and made
discharge of the liability
upon which the plaintiff based his
suit. At first glance 1t appears as II
the plaintiff and his attorney should
have known that the defendant hao
a receipt signed by him In his posses
sion and have been prepared to meet
1t with proper proof. The plaintiff
in his motion for q new trial alleged
surprise as to this receipt and stated
that he was not prepared to meet IL
at the time it was presented, The
court assumed that the claim had
been settled by the plaintiff ana that
the matter had in some way been for
gotten or overlooked by him. lie
directed a verdict for the
defendant and dismissed the PLAIN
tiff's case. 1t was certainly careless
ness on the part of PLAINTIFFS attor-
ney not TO have known about the re- |
ceipt which had been given by his
client. especially as in his amended
answer the defendant alleged pay
ment, but had he known it. he would
not have been justified in believing
that defendants counsel would use IL |
az he did without explanation and as
proof of payment. He must have as
sumed. If he had known about the
receipt in defendants possession, that
defendant would not use it as pay
ment when defendant knew that 1t
was not payment. ANY other assump-
lion would have been that defendants
counsel would attempt to mislead the