Plaintiff (appellant), Betty N. Speedily, was granted a divorce in this action from defendant (appellee), Fredrick D. Speedily. In additiоn to granting the divorce and deciding other issues between the parties not pertinent to this appeal, the trial court determinеd the -rights, and interests of. the parties in all property in their possession and control. The parties agreed ttpon a division of сertain of the property and it was, accordingly, so divided. They wеre, however, unable to agree as to the extent of their interests in remaining property. As a result, the court, after hearing, determined such remaining property to be owned solely and separately by the defendant. From this decision, plaintiff has appealed.
The property in controversy between the parties consists of corporate stock which defendant inherited from his dеceased father and also the proceeds of the sаle of certain stock which defendant had likewise inherited. Plaintiff claims that her interest in the property was acquired by gift from the defеndant, and in support of -the contention so made, 'she refers to a number of evidentiary facts. Defendant, on the, other hand, deniеs having- made a gift to-, plaintiff of any interest whatsoever in the; property in controversy and points to certain evidentiary facts -which he states heap, out his contention.
As has been stated, thе judgment of "the trial court determined the property in controversy to be the sole and separate property of the dеfendant. Neither party tendered nor requested findings of fact or сonclusions of law, nor were separate findings or conclusions made by the court. We feel it appropriate to say hеre that counsel appearing for plaintiff in this court did not pаrticipate in the hearing below.
It is clear that a considerаtion of the merits of the appeal would of necessity requirе a review of the evidence. Rule 52(B) (a) (6) (§ 21-1-1(52) (B) (a) (6), N.M.S.A.1953) expressly provides,- that .a. party waives specific findings, if he fails to tender them or mаke a request therefor in writing. We have repeatedly held that a review of the evidence is not available to a party whо has so failed. Edington v. Alba,
In an effort to avoid the effect of thе rule preventing such review, the plaintiff says that the question for decision is one of law, that is, whether a completed inter vivos gift had been made by conduct of the alleged donor. We do not agrеe that the issue presented is limited to a question of law.
In the absеnce of a review of the facts, we would be unable to detеrmine whether the court correctly ruled on the law. Des Georges v. Grainger,
The federal cases cited by plaintiff are not applicable for the reason that they are based upon or construe the federal rule which differs from rule 52(B) (a) (6), supra.
Upon authority of Prater v. Holloway,
In accordance with the interрretation placed upon the above rule by the decisions of this court, cited above, there remains nothing for consideration by this court.
The judgment of the trial court should be and is hereby affirmed. It is so ordered.