FEDERAL NAT'L MTG. ASS'N V. ROSE REALTY, INC., 1968-NMSC-102, 79 N.M. 281, 442 P.2d
593 (S. Ct. 1968)
FEDERAL NATIONAL MORTGAGE ASSOCIATION, a
corporation,
Plaintiff-Appellee.
vs.
ROSE REALTY, INC., a corporation, Defendant-Appellant
SUPREME COURT OF NEW MEXICO
1968-NMSC-102, 79 N.M. 281, 442 P.2d 593
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, REIDY, Judge
Oliver B. Cohen, Albuquerque, for
appellant.
Montoya & Montoya, Albuquerque, for
appellee.
Compton, Justice. Chavez, C. J., and
Noble, J., concur.
{1} This action by the
plaintiff was to recover judgment on a promissory note and to foreclose a
mortgage securing the same. The action was filed January 19, 1966. A copy of
the complaint with copies of the note, mortgage and assignment to it attached
as exhibits was immediately served upon the defendant. The defendant, Rose
Realty, Inc., a corporation, being a subsequent mortgagee, on January 24, 1966,
served the plaintiff with a request for admissions to be answered within 10
days that the note had been paid when refinanced by other defendants. The
request was not denied by plaintiff until September 16, 1966. In the meantime,
the defendant, pursuant to § 21-1-1(36), N.M.S.A.1953 Comp., had moved for a
dismissal of the cause on the ground that such failure to deny the requests
operated as an admission that the note had been paid.
{2} The cause was tried to
the court. The defendant electing to stand upon its motion to dimiss offered no
evidence. Judgment was awarded in favor of the plaintiff against all defendants
for the full amount of the note, and the defendant, Rose Realty, Inc., a
corporation, appeals.
{3} The denial of appellant's
motion to dismiss is the basis of its first point urged for a reversal of the
judgment. We fail to see any error in this regard. Our review on appeal is
limited to a consideration of the transcript of the record properly certified
{*282} by the clerk of the trial court, State
v. Edwards,
54 N.M. 189,
217 P.2d 854, and the transcript of the record fails
to show that the request for admissions was ever introduced into evidence as a
part of the record. Robinson v. Navajo Freight Lines, Inc.,
70 N.M. 215,
372
P.2d 801.
{4} The basis of appellant's
second point is that the court erred in awarding a money judgment against it.
The point has merit; there was a procedural denial of due process. A judgment
may not grant relief which is neither requested by the pleadings nor within the
theory on which the case was tried. Van Sickle v. Keck,
42 N.M. 450,
81 P.2d
707; Badaracco v. Badaracco,
10 N.M. 761,
65 P. 153; Lockhart v. Leeds,
10 N.M.
568,
63 P. 48.
{5} The judgment, to the
extent it awards a money judgment against the appellant, is reversed;
otherwise, the judgment is affirmed.