Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1920-06-11
LIST OF SUPREM E
COURT DECISIONS

Il COURT DECISIONS
Joseph De Grantenreid, appel
liant, KS. Leandro Cassus, appellee;
No. 2306-Chaves.
This is a suit by appellant to
quiet title to certain lands in
Chaves county, the complaint be-
ing in the ordinary form. Appellee
f rst answered by general denial,
second by setting up the fact that
appellant claimed title to the land
under a tax deed issued by the
county of Chaves, and attacking the
validity of the proceedings leading
to the issuance of the deed, He al
so filed a cOunterclaim setting forth
the fact that he was the owner of
the real estate and that appellant
claimed some interests therein ad-
verse to his right and asked his
title to be quoted as against appel
liant. Motion to strike was filed
issue was joined and the court
later sustained a demurrer to the
evidence and afterwards made
findings of facts and stated con-
illusions of law and entered judg-
ment for appellee, from this judg-
ment this appeal is prosecuted.
Judgment of the court below re-
verSed, cause remanded.
Syllabus by the Court.
/. Section Is, chapter %, Laws
1899, which requires the notice for
tax sale to be published each week
for four consecutive weeks, the
last publication to be not less than
thirty days prior to the date Of sale,
is complied with by publication of
the notice of sale on the same day
of the week for four consecutive
weeks, although the full period of
twenty eight days has not elapsed
between the first and the last pub
LEGATION is more than thirty days
prior to the date of sale, following
the case of DEWITT VS.. Joyce-Pruitt
Co., 20 N. NJ. 572.
2. Section SO, chapter "a, Laws
1913, authorizes the sale of delin-
quent tax sale certificates acquired
by the various counties under form
err laws, as well as under said
chapter 81.
Opinion by Roberts, j; Parker,
c. j., and Reynolds, j., concurring.
II. B. Jamison, receiver, etc, ap-
pellant, VS.. A. b. McMillen, tustee,
etc, appellee; No. 24O4-Bernalillo
county.
The judgment from which this
appeal is taken is as follows: This
day this cause came to be heard,
hereupon it was suggested that
Pearce c. Rodey has resigned as
receiver and that II. B. McJamison
had been appointed as his success
sor. 1t is therefore ordered that
said Fl. B. Jamison be and he here
by is substituted as plaintiff in SAID
cause.
"Thereupon plaintiff moved to
amend his complaint by striking
out paragraph five; to which mo-
ton defendants by their counsel
objected. Whereupon the court
having heard argument and being
advised in the premises 1t was or
dered that the said plaintiff be
and he hereby is allowed to amend
his complaint by striking out par
agraph five thereof to which Or
der of the court defendants ex-
cepted.
"Thereupon plaintiff having Of
fered to introduce evidence, de-
PENDANTS objected to said introduce
ton and demurrer to said complaint
by reason that the same does not
state facts sufficient to constitute
a cause of action.
"Whereupon the court having
heard argument and being fully ad-
vised in the premises finds that
said complaint does not state
facts sufficient to constitute a
cause of action and that said de-
murrer ought to be sustained. IT
Is therefore ordered that the said
demurrer be and the same is here
by sustained; to which order and
Judgment of the court the plaintiff
excerpts.
"Thereupon on application Of
plaintiff he was allowed to amend
his complaint; and said demurrer
being renewed as to said COM
plant as amended, and having been
argued by said complaint as
amended does not state facts suf-
ficient to constitute cause OF
action and the said demurrer ought
to be sustained.
1T is therefore considered that
the said demurrer be and the same
hereby is sustained, to which order
Of the court the plaintiff excepted
And thereupon the plaintiff de-
,,i, O., I, n, Or tonn1 and nlnNt. |
ing TO stand upon his complaint it
Is ordered that the said complaint |
be and the same hereby is dismiss
ed and that the defendant recover
from the plaintiff its costs,
to be taxed, to which Judgment OF
the court the said plaintiff ex-
cepted."
Judgment of the court below, af-
'irmed.
Syllabus by the Court.
/. Under section ALA, Code ,
1915, an objection that the COM
plant fails to state facts sufficient
% constitute a cause of action can
be raised at any time and is not
waived by failure to demur. II the
defendant fails to object to the
and litigantest the ma
erial fact or facts omitted there
rom, he cannot after judgment
'aise the question as to the insuffi-
,iency of the complaint and on ap-
zeal to the complaint would amend
o conform to the facts proven on
he trial.
2. 1t is appellants duty to see
hat the record is kept and certified
10 as to present the point which he
Iesires to have the appellate court
eView, and where he contends that
he trial court enormously held
hat his second amended complaint
allied to state a cause of action, 1t
s incumbent upon him to have
UGH amended complaint incorpor-