TEXAS COTTON HARVESTER SALES CO. V. SMITH, 1966-NMSC-132, 76 N.M. 495, 416 P.2d
159 (S. Ct. 1966)
TEXAS COTTON HARVESTER SALES CO., a
corporation,
Plaintiff-Appellant,
vs.
H. P. SMITH and C. N. SMITH, doing business as SMITH
BROTHERS, and R. L. DAVIS, R. L. BYRUM and BILLIE JOE
GANDY, Defendants-Appellees
SUPREME COURT OF NEW MEXICO
1966-NMSC-132, 76 N.M. 495, 416 P.2d 159
Appeal from the District Court of Lea
County, Nash, Judge
HARVEY C. MARKLEY, Lovington, New Mexico,
Attorney for Plaintiff-Appellant.
HAMMELL CARRELL, Lovington, New Mexico,
Attorney for Defendants-Appellees.
HENSLEY, JR., Chief Judge, wrote the
opinion.
DAVID CHAVEZ, JR., J., J. C. COMPTON, J.
{*496} HENSLEY, JR.,
Chief Judge, Court of Appeals.
{1} Texas Cotton Harvester
Sales Co., a corporation, hereinafter referred to as the plaintiff, brought
suit in the district court against H. P. Smith and C. N. Smith doing business
as Smith Brothers, and R. L. Davis, R. L. Byrum and Billie Joe Gandy to recover
the sum of $736.82 for machinery belts delivered by the plaintiff to the Smith
Brothers.
{2} The record fails to
disclose the return of service of process upon any of the defendants, however,
there is a suggestion in the record indicating that the process server had
served the summons, but was withholding return thereof until paid.
{3} The defendants Davis,
Byrum and Gandy filed timely answers to the plaintiff's complaint denying that
they had authorized the Smith Brothers to purchase any merchandise from the
plaintiff.
{4} The defendants, Smith
Brothers, filed no pleadings whatever yet they appeared in person at the trial
and without benefit of counsel. The plaintiff did not appear in person at the
trial, but was represented by counsel.
{5} At the time of trial the
defendants Davis, Byrum and Gandy orally moved to dismiss the plaintiff's
complaint for failure to state a cause of action as to them. The motion having
been sustained, the plaintiff moved to amend its complaint to allege that the
purchase by the Smith Brothers was authorized by Davis, Byrum and Gandy. Leave
was granted to amend. Thereupon the plaintiff called the defendant C. N. Smith
as an adverse witness and at the conclusion of the testimony of this witness
the plaintiff rested. Again the defendants Davis, Byrum and Gandy moved to
dismiss as to them. The motion was sustained and in due time a judgment was
entered dismissing the plaintiff's complaint as to all of the defendants for
failure to prove the existence of the indebtedness alleged.
{6} The plaintiff now appeals
and for reversal urges that the trial court erred in ruling that the defendants
Davis, Byrum and Gandy were not parties because of lack of return of process
showing service. The plaintiff contends that the ruling made it impossible for
it to call either of the three
{*497} defendants
as adverse witnesses and for that reason was prevented from presenting its case
fully.
{7} The record does not disclose
that the trial court so ruled. Nor does it disclose that either of the three
defendants were called as adverse witnesses so that the court could so rule.
If, in fact, process had been served upon each of the three defendants, the
plaintiff could have and should have produced the proof thereof. This was very
likely in the mind of the trial court when it advised counsel for the plaintiff
that service of summons "will be paid for and filed in the case before it
goes to trial against anybody." If counsel misconstrued the remark of the
court, it is his error, not that of the court. In any event, the plaintiff's
counsel should have called the remaining adverse witnesses, and by so doing he
could have called the court's attention to the alleged error. Having failed to
do so, it may not be raised for the first time on appeal. State v. Walker,
54
N.M. 302,
223 P.2d 943.
{8} Appellant also contends
that the court erred in sustaining the defendants' motion to dismiss on the
ground that the plaintiff had not established a case.
{9} The appellant failed to
tender requested findings of fact to the trial court and it failed to make any
written request of the trial court for findings. We will only call attention to
§ 21-1-1(52)(B)(a) (6 N.M.S.A. 1953, and Owensby v. Nesbitt,
61 N.M. 3,
293
P.2d 652; Carlisle v. Walker,
47 N.M. 83,
136 P.2d 479. The evidence will not
be reviewed.
{10} The third claim of error
relied upon for reversal is on an alleged ruling made by the trial court. The
appellant maintains that the trial court erred in ruling that Smith was not an
agent for Davis, Byrum and Gandy. In an effort to evaluate this objection, we
have searched the record. The appellant's brief failed to point to the ruling
in the bill of exceptions. The only ruling by the court on agency evidence
arose on the question of the agency of Byrum for Davis and Gandy. The
contention has no merit.
{11} For the reasons given,
the judgment of the trial court is affirmed.
DAVID CHAVEZ, JR., J., J. C. COMPTON, J.