*1 BANK AND STOCKMENS The FARMERS Mexico, CLAYTON, Clayton, New a OF Corporation, Plaintiff-Appel- New Mexico lant, MORROW, James Mor- Sr., Defendants-Appellees. Abup, Clayton, for Krehbiel & appellant. Court of New Mexico.
July 27, 1970. Skinner, Raton, defend- Robert
ants-appellees.
TACKETT, Justice. Dis- was commenced This action Mexico, County, New trict Court of Union promissory notes and to recover on two mortgage. with- After trial to foreclose a in favor jury, judgment was enterеd out on the two notes “Bank” against the “Jimmy.” judgment denied mortgage. foreclosure on the the foreclosure. appeals from the denial of facts, briefly, as the triаl foun February 20, court, are as follows: On $56,326.51. 1962, Jimmy one- He was the owner of an undivided (i/jd) lands. third interest in certain covering interest, one-third which secured the maturity recited indebtednеss tmtil five years later. 13, 1962, Jimmy wife and hio
conveyed, by warranty deed, interest their Morrow, Sr., desig- in the land to James “Morrow,” who, did nated the Bank. know period five-year expired, Whеn an Bank and executed renewing mortgage. There- after, this action were two notes in 1962, Jimmy signed by Jimmy. additional Bank, by from the which was secured 264 head of cattle. repаid interest This amount 1962, though never credited on October but rather account *2 obligation (Conclusion 4) was credited to an No. Company, Agricultural Commerce Loan “The defendant James Company.” Here it “Loan is prejudiced by was the failure of the interesting to that Rex note Reeves was plaintiff apply
president Company оf the Loan and also by plaintiff’s cattle secured loan to James the Bank. The arid Morrow, Jr., to that loan.” were to the Bank. After III, point alleges it Under Bank’s 1962, 13, the Bank continued to loan that: money Jimmy. additional sums of Any Event, “In Defendant Mor- James points The Bank relies on three re- Preju- Could Not Been Have points II, versal. Under I and diced Mаk- the Actions of Plaintiff in challenges the trial findings court’s of ing Application Payments.” of fact Nos. 7 and and of conclusions law transcript has reviewed therefrom, Nos. 6 аnd flowing entirety in its that the chal and we hold follows: lenged findings fact and conclusions of of (Finding 7)No. than flowing law therefrom have “From time to time after the execu- Thus, suppоrt substantial in the evidence. security tion of agreement, said collateral they Mar appeal. will not be disturbed Morrow, Jr., the said James Trujillo, tinez v. 81 N.M. money plaintiff, additiоnal sums of from argument con of Much promissory plain- and executed notes to points the de cerning I and II bears on tiff, thereof, as evidence all as more trial meanor of the witness Reeves. fully appears Defendant’s Exhibit position evalu court is in a much better 1 introduced in evidence in this cause.” are than the demeanor of witnesses ate (Conclusions 6) Nos. and normally we, disturb and we will not are ruled evaluation. I and II
“The Points of additional loans against the Bank. Jr., by plaintiff, after James it conveyance mentioned, is ruled Point above Morrow, Sr., defendant James court con against as the trial security validated the agree- collateral so, cluded, correctly and that Morrow ment as to the said defendant James part of prejudiced by the failure on the Morrow, Sr. against apply payments the Bank to “The mаking loan, agree- extension have satis the Bank’s which would plaintiff ment between the and one- fied the Bank’s James Morrow, Jr., finding By invalid to extend the third interest in the land. lien of the collateral agreement that the Bank No. the trial court found made, to loans thereafter of had actual and constructive warranty deed, prior extension Sr.” to the James and agreement entered into between (Finding 17) No. The, challenged Bank. has not “On October the said appeal. find on this Those Morrow, Jr., paid plaintiff ings аccepted challenged of fact not applied upon to be this court and con and are deemed true owing indebtedness from him to the trolling. Trinidad Bank v. Industrial plaintiff; failed Romero, to credit such sum to the account of the said The court further concluded that the conveyance col- became of deed оf aware lateral agreement money mentioned in continued to Finding No. and the Jimmy. land described Morrow was therein.” junior lien holder as to the lien of certainly- any finding thаt and he was no loans were made
mortgage on
the time of the extension
by the failure of the Bank
or
way
afterward,
as to
proceeds in such a
or
the two
аpply
notes here sued
loan,
prior
the basis
were not for loans
satisfy
which was
made
the Bank’s
City
agreement. Thus,
mortgage. Heller
Gate
no
there are
suppоrt
Loan
Conclusions 5 and 6.
Building and
*3
Conly
In-
(1965);
v.
payments being discharge sufficient
lien as to James
Sr.’s, I concur in the affirmance on ground
this
alone.
Wollen,
L. Pickering,
Leonard
Julius
garnishee-appellant.
Modrall, Seymour, Sрerling, Roehl &
ment on appellant interrogatories at- tached. The return shows that these papers Bernard, were delivеred to “R. Mgr., Sparton Southwest, April Inc.” on a deputy sheriff. Bernard, 22, 1969, Mr.
On Manager” appellant, “Personnel sent district letter to the clerk of the unsworn referring docket cоurt the cause briefly answering interroga- number copy also sent of this letter was tories. attorney appellee. for the At to the clerk same he sent a chеck $9.42, although the clerk’s 5,May this sum is dated May judgment a default against appellant-garnishee entered $4,077.90, pursuant sum 26-2- 18, N.M.S.A., Comp, (since repealed). judgment This statute authorized thе garnishee for the full amount of the judgment against the defendant “should garnishee fail make answer interrogatories.” Appellee writ and the pointed out to the trial her ex parte motion for default answered, had not been nor writ interrogatories been answered under required oath 21-1-1(33), Rule 33 [§ N.M.S.A., 1953 Comp.].