Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1921-01-17
the said Thomas B. oatron, sarOn

lcefneQ as the allegations OF the
complaint do not in any way con-
meet these defendants or any Of
them with said cause, and they
further say that they were not. nor
were any of them, parties to said
cause.
To the answer of the defend
ants plaintiff filed a reply alleging
that in 1903 said lands were sold
py partition decree as originally
PLEADED in the complaint; and that
the defendants and their ancestors
We're designated as unknown heirs
or TWO named persons deceased, as
the unknown owners of the Eaton
grant and unknown claimants of
interest adverse to Thomas B. Cat
ron and Nicolas Pine, who were the
pialntiffs in the partition suit. De-
ienoants moved to strike out por-
tons of the reply, which was de-
MED by the court and that action
Is assigned as error.
On April 20, 1915, there was
flled by the defendants a, protest
against the trial of the cause in its
present form as such trial would
deprive them of their right to trial
by jury. When the case came on
for trial before the court the de-
PENDANTS renewed their objection to
any trial by the court on the
| ground that the case involved the
recovery of possession of real
estate, which the pleadings showed
to be in the possession of the de-
PENDANTS. This objection was dis
Regarded by the court.
At the conclusion of the taking
| of the testimony defendants moved
the court to dismiss the case on
the ground that the evidence show
ed that it was instituted for the
purpose of depriving the defend
ants of the possession and of any
rights of possession TO the different
! portions of the Cadillal. as to which
each defendant has right to a.
trial by jury. The record does not
show any distinction ruling on this
motion, but the court evidently
ignored it.
Defendants applied to the court
to make findings of fact and con-
clusions of law. which application
was denied. Defendants then pre-
scented objections to the final de-
cree proposed by the plaintiff and
these objections were overruled.
| The court entered a final decree by
which the title of the plaintiff to
| the Cadillal was established and
lquieted against the adverse claim
| of defendants. From this decree
the defendants have appealed to
this court
Judgment of the court below, re-
versed.
Syllabus by tho Court.
/. In suit to quiet title where
the complaint alleges the defend
ants are in possession OF the land,
title to which is sought to be quiet
ed, that they are cultivating it and
have fenced it, and the answer sets
up title. possession. and the right
to possession in the defendants, the
plaintiff has plain. adequate and
complete remedy at law in eject
ment and the suit to quiet title can
not be maintained.
2. In a suit to quiet title where
the complaint alleges defendants
are in possession of the land. title
to which is sought to be quieted.
that they are cultivating it and
have fenced 1t, and the answer sets
UP title, possession and the right
to possession in the defendants,
TREY, the defendants. have con-
stitutional right to trial by jury and
the court Is without jurisdiction to
try the case as suit in equity.
8. A court of equity can not.
under it's general powers. take Jur-
isdiction in suit to quiet title
brought by one plaintiff against
numerous defendants to prevent
multiplicity of suits. when the de-
PENDANTS have nothing in common
except their source of color of title,
and each defendant has q distinct,
different and separate defense.
4. Where plaintiffs in parti-
ton suit, or a suit to quiet title,
have knowledge or the means of
knowledge as to persons in actual
adverse possession of the lands to
be partitioned, or the title to which
is sought to be quoted. such per-
sons can not be bound by decree
in the partition suit or suit to quiet
title by service by publication I'M
der the name of unknown own
ers." They are entitled to personal
service under such circumstances.
Priest, ct al. VS.. Las Vegas, Is N. M.
692, and La Cueva Ranch Co. vs..
Rodriguez, II N. NJ. ESQ. followed.
Opinion by Reynolds, j.. Parker,
j., concurring. Roberts. c. j.. con-
curing especially.
: State of New Mexico, appellee,
VS.. sylvester E. Bailey appellant,
No. PAPA. Grant county.
indicfn6 at
the March. 1919, term of the DIS
trict court of Grant county for the
killing of one James M. Bedore.
and verdict of murder in the first
degree was returned by the jury.
Appellant filed a motion for {, new
trial, which was overruled and the
appellant sentenced to be executed
Friday, April rs. 1919. From the
verdict and sentence this appeal Is
prosecuted.
Judgment of the court below. af-
firmed.
Syllabus by the Court.
/. Appellant can not predicate
error upon the action of the trlai
court, in improperly oyerruling ms
challenge to a juryman when at
the final impanelling of the jury
he had not exhausted his peremp-
tory challenges and the objection
able juryman was not forced upon
him.
Q. Evidence of threats is adrnlss-
ible in a case of homicide although
no one Is definitely designated.
3. The reputation of the de-
ceased as a man of peaceable char
acter is competent evidence on be-
half Of the prosecution after such
character has been attacked and
put in evidence by the defense.
A. Proof of a witness particu-
lar overt acts of wrongdoing IS or
dinarily relevant as impeaching
evidence. The extent of such, ex-
animation rests largely in the dis
erection of the trial court.