Baca v. Catron

Citations

• 24 N.M. 242
• 173 P. 862

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. A formal party, or a person who makes himself a party by his own conduct during the litigation, is not entitled to intervene under section 4382, Code 1915, for the purpose of subsequently litigating rights which he. failed to assert in the main proceeding. P. 245</p> <p>2. The owner of a segregated tract, in possession, cannot be proceeded ,against as an unknown owner, and is not made a party by service of process by publication against unknown owners in a partition suit. P. 246</p> <p>3. A person not named in the complaint nor- served with summons, if be has an interest in the matter in litigation, makes himself a party to the cause by acts and conduct on bis part amounting to a general appearance. P. 247</p> <p>4. The record on appeal must show all of the record of the trial court necessary for a consideration of the questions presented for review, and this duty devolves upon the appellant or plaintiff in error. P. 248</p> <p>5. The trial court will take judicial notice of the record of a case on trial before it in determining whether a person claiming the right to intervene under the statute is a party to the main cause or not, and the court will perform this duty without any request from the parties. P. 249</p> <p>On Motion for Rehearing.</p> <p>6. Where it appears from the complaint in a partition suit and the proceedings thereunder That the parties were tenants in common when instituting the suit, it is immaterial that the complaint shows that at some time prior to the suit the property was owned in severalty. P. 251</p>