Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1921-01-10
LIS T OF S U p r EN-
COURT DECISIONS


The Following decisions have
been handed down by the state SUI
! preme court:
The Citizens Light, Power and
i Telephone company, ETC., appellee,
VS.. Anton Usnik, appellant. No.
E2,343. Mckinley county.
This is a suit brought by the ap-
pellee seeking the reformation of
the description of a deed executed
land delivered to the appellant
heretofore by the appellee. APP
pellant appeared in the district
court and filed q petition and
bond for removal of the cause to
the federal district court for the
state of New Mexico. No demurrer,
answer or other pleading was filed
| to the complaint An order of re-
moval was entered and thereafter
on the 4th day of April, 1918, the
federal district court entered its
order remanding the cause to the
district court of Mckinley county,
on the ground that the federal
court had no jurisdiction of the
| cause and the same had been i'm
properly removed The district
court, after reinstating the case
and no pleadings having been filed
| by the appellant in the district
court, entered Judgment by de-
fault against the appellant on the
merits. On the 14th day of May
! thereafter appellant filed a mo-
ton to set aside the Judgment by
default, and as ground of said mo-
ton alleged that appellants an
swer and cross complaint were on
file in the United States district
court and the said answer and
cross complaint having been so
filed in that court while the case
was pending there, appellant was
| not in default, and alleging other
| grounds. The court denied the mo-
ton to set aside the judgment
from which this appeal is prose-
| cuted. .
Judgment of the court below,
affirmed.
syllabus by the Court.
/. A defendant in default for
failure to file an answer within the
time limited by the statute Is not
| 10 VI dppiiSaN
ton for default, judgment.
2. The filing of petition for
removal Of a cause from the state
to the federal court and the bond
| is not appearance in the state court
and does not extend the time to
appear and plead therein.
3. Where case has been inn
properly removed from a state
court to a federal district court,
and is remanded by the federal
court to the state court, the federal
court never acquired jurisdiction of
such case, and an answer to other
| pleadings filed in a federal court
did not have the effect of plead
| ing in a state court and did not
serve to extend the time Of the de-
PENDANT to answer the complaint.
| 4. Where in such q case the
cause is remanded to the state
court and the answer or other plead
ing filed inthe federal court is not
certified to the state district court,
or refiled therein in thirteen days
after the remand and almost four
months after the service of sum-
mons in the cause, a default Is
properly entered against the de-
PENDANT for failure to plead or
answer.
5. In such case the court did
not abuse it's discretion in refusing
to set aside the default Judgment
upon showing that an answer
had been filed in the federal court,
and no other valid excuse being Of
| fered.
Opinion by Roberts, c. j.; Park
er, j., cpncurring, Reynolds, j.,
having tried the case below, did
not participate.
Joseph Ravany. administrator,
etc, ct al. appellants, VS.. the Equit-
able Life Assurance society, etc,
appellee. Bernalillo county. No.
1859.
The appellants brought suit
against appellee to cancel certain
annuity contract entered into by
one Joseph M. Ravanay, now de-
ceased, with appellee in September,
1912, for an annuity payment to
his insane daughter. Elvina Rava-
nay. The theory of the complaint
was ID that Joseph M. Ravanay
was without the mental ability and
power to understand the nature
and character of the said pretend
ed contract for an, annuity into
which he entered with the said
company. and (2) that the agent of
appellee made certain false and
fraudulent representations to the
said Joseph M. Ravanay. and (3)
that the consideration for the con-
tract was grossly inadequate. The
answer denied all the material al
legations of the complaint, The
court upon the trial Of the case
made certain findings of fact and
stated conclusions of law and en-
tered decree sustaining the con-
tract, from which this appeal is
| prosecuted.
Judgment Of the court below,
affirmed.
Syllabus by the Court.
!. More inadequacy of consid-
GRAFTON is not sufficient in and OF
| itself to avoid a contract, unless
such inadequacy is so gross as to
shock the conscience and furnish
satisfactory and decisive evidence
of fraud.
2. The appellate court will not
consider d finding made by the trial
court five days after the entry OF
Judgment and without notice to the
opposite party.
8. A finding by the court to the
effect that there was nothing in
the appearance. manner of TESTIFY
ing or attitude on the witness stand
of certain witnesses to cause the
court to disbelieve any of their tes-
timony. is not a finding Of an ulti-
mate fact and cannot be used to
limpeach the Judgment rendered by
the court.
4. Mental weakness, whether
resulting from sickness, age or any