25 N.M. 536 | N.M. | 1919
OPINION OE THE COURT
This suit was instituted in the district court of Sandoval county by appellant for the purpose of quieting his title to several different tracts of land situated in said county and being within the limits of the Alameda land grant. The different tracts of land which he claimed were set forth in his complaint and were designated by numbers. The appellees San Mateo Land Company and others appeared and answered and also filed a cross-complaint. > A reply and answer were filed by appellant to the answer and cross-complaint of the appellees. The case was tried to the court, and appellant had judgment as to all the tracts in question, save tracts 12 and 16. As to these two tracts, the court found that the appellees were the owners thereof and quieted their title to the same. To review the judgment this appeal is prosecuted. .
The appellant relies upon three propositions for a reversal, viz.: (a) Appellees were not entitled to affirmative relief on the pleadings; (b) the judgment quieting appellees, title to tracts 12 and 16 is unsupported by any competent evidence; (c) appellant’s title to tracts 12 and 16 should have been quieted. These propositions will be discussed under two general heads.
No demurrer or motion to make more specific was interposed to the cross-complaint in the court below, but it was treated as sufficient by counsel for appellant, and it is proper to say that appellant was not represented in the court, below by the attorneys now appearing for him in this court. Appellant filed an answer to the cross-complaint, and the court and all the parties in the court below construed the pleadings as presenting the issues of appellees’ right to affirmative relief quieting their title to the tracts in question. The court at the conclusion of the evidence made findings of fact. and stated conclusions of law amply supporting the judgment. Appellant at no time in the court below raised any contention as to the sufficiency of the cross-complaint or cross-bill filed by appellees to warrant affirmative relief. The parties in the court below having treated the cross-complaint as sufficient to present the issue as to appellees’ right to affirmative relief quieting their title, and the judgment presumptively being supported by the evidence, the cross-complaint will be amended in this court in aid of the judgment. In the case of Canavan v. Canavan, 17 N. M. 503, 131 Pac. 493; Ann. Cas. 1915B, 1064, this court said:
“Where a material, even jurisdictional fact, omitted from the complaint, is as fully litigated, without objection, as if said fact had been put in issue by the .pleadings, it is 'the duty of the trial court,.and of this court on appeal, to amend the complaint in aid of the judgment, so as to allege the omitted fact.”
Appellant argues, however, that the proof in support of the omitted allegations was competent under the answer, hence the matters omitted from the cross-complaint were not litigated; but, as we have said, all the parties and the court below treated the pleadings as presenting the right of appellees to affirmative relief under the cross-complaint or cross-bill, and appellant will be held to the same theory here. Caldwell v. Higginbotham, 20 N. M. 482, 151, Pac. 315.
“Upon a doubtful or deficient record, every presumption is indulged in favor of the correctness and regularity of the decision of the trial court.” Street v. Smith, 15 N. M. 95, 103 Pac. 644; Teroritory v. Herrera, 11 N. M. 129, 141, 66 Pac. 523; Witt v. Cuneod, 9 N. M. 143, 145, 50 Pac. 328; Sloan v. Territory, 6 N. M. 80, 27 Pac. 416.
Assuming for the sake of argument that the evidence incorporated into the bill of exceptions fails to show title in appellees, which is by no means clear, it will be presumed that the omitted evidence supplied proof of title and warranted the judgment entered.
The judgment will be affirmed, and it is so ordered.