Blake v. Cavins

Citations

• 25 N.M. 574
• 185 P. 374

Syllabus

<p>SYLLABUS BY THE COURT</p> <p>1. • Section 5571, Code 1915, provides that the venue of a case, either civil or criminal, may be changed when it shall appear that either party cannot have justice done him at a trial in the county in which such case is then pending, or for any other proper cause satisfactory to the judge before whom the motion is made.</p> <p>Section 5573, Code 1915, makes the changing of venue mandatory upon motion filed therefor, supported by affidavits showing the facts which the statute prescribed shall require the change of venue.</p> <p>Under the first section no showing by affidavit is required, and the venue may be changed upon oral motion. Where a change of venue is applied for, and the supporting affidavits are not sufficient to warrant the change under section 5573, but the court nevertheless grants the change of venue, it will be persumed that the power was exercised under section 5571, and that the court properly exercised the discretion conferred by such section. P. 578</p> <p>2. The trial court cannot take judicial knowledge of the fact that records in the office of the county recorder have been destroyed by fire. P. 582</p> <p>3. Where the notice of location of a mining claim states that it is a relocation of a former named location, the validity of the prior location is admitted; but, where the notice of location does not state that it is a relocation, the junior locator may defend upon (a) the invalidity of the senior location, and (b) the failure of the senior locator to do the required amount of assessment work, and by interposing the defense of failure to do the required amount of assessment work, the junior locator does not sacrifice his right to question the validity of the senior location on the ground of failure to comply with the requirements of the federal statute in making the location.</p> <p>P. 584</p> <p>4. Questions presented for specific findings which assume as true material facts in issue and not admitted should no