Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1920-03-22


upon the theory that the crime was
committed by lying in wait, all the
evidence on the part of the prose-
cution being circumstantial, it Is
not error in such a case to instruct
the jury in both murder in the first
and second degrees, although the
defendant pleaded self-defense, AMI
ii is contended that he is either
guilty of first degree murder or not
guilty.
Opinion by Reynolds, j.; Parker,
c. j., and Roberts, j., concurring.
The First National Bank of
Elida, n. M, a corporation, appel
lee, VS.. Cleve George. ct al, appel
lants, Roosevelt county; No. 1870,
This cause arose out of the fol-
lowing facts Plaintiff below ap-
pellee here, filed suit against
Cleve George and b. f. Bennett on
a joint and several promissory note,
At the same time plaintiff filed an
affidavit in attachment alleging as
ground that the defendant, Cleve
George, was a nonresident of New
Mexico and was resident of
Texas. On October 8, 1918, plaintiff
filed a second affidavit in attach
, .ment against b. F. Bennett, all
leging as a ground for attachment
that said Bennett was about to re-
move his property and effects from
the state of New Mexico, so as to
hinder, delay and defraud his
creditors. In both of these affi
davits plaintiff prayed for a writ of
attachment Writ of attachment
and summons was filed with the
clerk, the sheriff's return showing
that he had attached the property
of Cleye George and subsequently
the sheriff also certified that he
served the defendant, 3. F. Ben
nett, in person on October s, 1918.
Plaintiff having moved for
judgment, judgment was taken
against defendants by default.
A motion to vacate said judg-
ment was filed and granted and
was granted. Exceptions were
taken to these proceedings and this
appeal prosecuted.
Judgment of the court below, at
firmed.
syllabus.
/. In an action in attachment
where defendant appears and
moves to quash the writ but does
not plead to the complaint, a judg-
nent by default on the case in
chief may be properly entered
against him. although the motion
t. quash the writ is still undete".
iEN med.
2. Obvious cleric al errors in the
exhibit attached to a complaint
IN, be disregarded when a default
judgment is taken or corrected sub
sequently to correspond to the
proof offered.
Mabie-Lowrey Hardware COM
pany, appellant, VS.. Tom Ross, ct
al, appellees. Eddy county. No.
1873.
This is a suit to quiet title
brought by appellant From a
judgment in defendants favor the
plaintiff appeals to this court.
Syllabus.
/. Where plaintiff and defend
ant both derive their titles from
the same grantor, TIN plaintiffs IT,
tie through an unrecorded deed to
ana tha defa,dant,s titlo fhronoh
n raoorded n,itcIain1 daed direct IA
him ond u,bora III attendant mr.
chasod II II, ,rood faith for value
ana had No ,novlndpe ,of the ont
standing unrecorded deed Of his
prantor to nIaintiffs grantor de-
fendant has The better title and is
nrotacted nv the REGARDING act
THO grontee under o,,itclaim
deed WIZ is nurchaser in good faith
lfor value without Knowledge of the
eyistence of an ,,nreoorded deed
froro hi, grontor ie entitled 10 tbe
bonafit Of the rocordine .ct that
is sect;on 7S8 Qualification 1e1b.
onipior Nv PavnoIds r. Parker
n 7 and poharts corc,,rring
Tho First National Ranx of Elida
N NJ narnoration anne1Iant VS.
Ciave ceorpe Of al annellees.
Dooso,oIt conntv No . AK
This is sniff in attachment
braugbt nv the rIaintiff The First
NatienaI 9anis If Islida anne1Iant
here A Indictment nv defanIt was
nhto;noa j., az ,,r;,c;nai casa and
an annaaI taken Tn this court in
oausa No % 80 IN said cause
Inds,,, 49, ~ az district canrt mas
sfsirned tbis date SnhseouentIv
~ atta,t,,,t ;ss,,a ir,,ol,,ad in
Eta ao''nt 80, ,riad by tba corrt
,,;th s,,r,, 80 non verdict in
Sasn u Juts sou GU s Gp u,os on
tarod disn,;ss;no tha attacbmant
Eron, 4bis i,,dsnent If dismissai
~ ,aro.o,,. .no,I !. nroeecutad
'"g Iu p 9TH" Of tbe court rS below af-