*1 363' expense McGHEE, removing JJ., has undertaken the of COMPTON and question relocating, McMANUS, B. Jr., the allied District JOHN recovery Judgе. if such whether the warranted
obligation involuntary arising was an emergency impairs
out health safety and therefore whether or not
prohibited by the constitution as to munici-
pal questions indebtedness, are which can- definitely
not at this time be answered in viеw pleadings. condition It 348 P.2d purpose is to be remembered that Mexico, Plaintiff-Appellee, STATE of New pleaded of this motion all well facts complaint admitted, are and we cannot BIBBINS, Defendant-Appellant. Earl anticipate what may defenses made on be However, behalf of
rule City announced in Barker v. Santa Supreme Court of New Mexico. Fe, supra, may persuasive, be con- if not 11, when trolling, the court sаid:
“ corporation municipal ‘Where any powers,
exercise of its or
performance duties, any of its in- in contract delicto lia-
curs arising express
bility whether by implication,
legislation or it cannot
escape liability unless relieved prоvision therefrom valid ”
law.’ case,
In from what has follows the trial court erred when said the motion to dismiss.
sustained therefore be
The case will reversed and trial court with directions
remanded to dismiss. motion
to overrule
so ordered.
36á days appellant. cashed
Blythe Norvell, Clovis, 5. Some ten after he had & jail by the check he tаken from the Gen., Atty. Dickson, Jr., Carl A. Hilton places the trash sheriff to where Atty. Gen., Dunifon, appellee. Asst. P. pickеd as up, well lumber had been *2 McGPIEE, Chief unloaded, he Justice. testified that and the sheriff any evidence had beеn unable to discover knowing- appellant was convicted of The picked up being or un- of the materials forged with intent ly uttering a instrument loaded. to a term and was sentenced to defraud penitentiary. He a rеversal seeks
in the previous fel- 6. That the had defendant court in that the trial erred grounds on the ony and cоnvictions. misdemeanor verdict, a for denying his motion unable to find 7. That the sheriff was against the evidence introduced that and anyone purported knew the in Clovis who support verdict of the to him is insufficient check, signer of the T. J. by jury. the was returned guilty correctly the instructed The trial court establishes the in case the record The a ver- jurors could return that before following: proved to it must have been guilty dict of cashed the check defendant That the 1. beyond and a reasonable their satisfaction store in Clovis Levines’ for that, $25 things, the check among other doubt for chauffeur’s license his presented had forged. was identification, therefor and received ample evidence that the maker There is cash, tie that and merchandise have an account in check not of the did him given it to had check maker drawn, which it was but bank on Clovis days of work. three fоr payment evidence that was one iota of there is not signer of purported That 2. forgery. a an аccount have not did check urged grounds for re- points Both drawn. it was be sustained and must therefore versal hоnor to bank declined That cause remand- and the reversed conviction check. with court instructions the district ed to sentence, the verdict aside set told the defendant
4. That discharge per- the work County Curry was, check drawer for formed ordered. so part scrap lumber part, hauling trash DAVID another, W. and also .CARMODY Clovis JJ., concur. it had place where to a COMPTON, J., dissenting. rected the pens to the stock place to a immеdiately south of Clovis CHAVEZ, J., participating. not Branding Company Office where he had dumped the scrap trash and lumber. The (dissenting). COMPTON, Justice appellant sheriff and looked over this area circumstantial, signs I and found no scrаp that trash or lum- While the evidence ap- ber dumped Finally, had been picture ap- there. A true deem substantial. pellant record- directed the sheriff pellant by previous to take is reflected Packing Company Swartzman three felonies He and Feed had been convicted hung- first fel- Pens were Harris His “had arount thеre misdemeanors. 1937; Inquiry pens some.” at the feed ony burglary disclosed conviction was 1945; person by that a burglаry in the name of Harris was the second was larceny in 1952. unknown there. grand third was for Being at the trial arrested, aрpellant 'unable faced these state- When ments, entirely only gave different give an account days stоry places he as to the had worked payment of three given in check *3 He then testified that the work doing yard work and Harris. Harris work performed for and with was in the At Harris scrap lumber. hauling trash and Street, property Rencher Har 1100 block on on locate trial, explained failure to belonging Singleton, and that he had j since been in ail he had fact that ris scrap lumber to hauled the trash and given. shortly the check was his arrest dump uр. Lane” site where it “Old Lover’s not stand explanation does this But further that he and He testified Curry County testified The sheriff party, re- another whose name he could not appel taken request he had appellant’s member, grain did some places where lant to testified Harris to Farwell Pens. He also Appellant first have worked given that the him at check was the Fos- Bella take him to the directed at 416 ter home West Second Strеet. On he had hauled which Vista Addition rebuttal, the sheriff testified that there, Arriving scrap lumber. trash time trying never at while werе any evidence that find failed to Harris to locate mentioned fact that work there of performеd appellant given check had been to him at the Fos- appellant had Actually the lot where kind. hоme, he worked for ter Harris in belonged to one East Street, 1100 block on Rencher or that by Eastwood for thе used wood, Next, appellant equipment. di- he had hauled feed to the Farwell storage of Pens. 366 deputies and his this, the sheriff all
Besides investi- independent extensive
made an attempt in an area in the Clovis
gation fruit- proved inquiry this
locate personnel And
less. no knew drawn check was
person. majority has reached
Feeling that decision, I dissent.
erroneous P.2d 485 Plaintiff-Appellee, CONLEY,
Ola Defendant-Appellant. WIKLE,
L.C. Mexico. of New
Supreme Court 14, 1960.