Gallegos v. Sandoval

Citations

• 15 N.M. 216
• 106 P. 373

Syllabus

<p>SYLLABUS.</p> <p>1. The filing of too many assignments of error rebuked.</p> <p>2. The court has a right to grant a new trial at any time during the term in which the judgment was entered.</p> <p>3. A complaint should proceed upon a definite'and dis-. tinct theory and upon this theory the plaintiff’s case must stand or fall.</p> <p>4. Where there is a fatal inconsistency between the general verdict and the special findings the latter must control.</p> <p>5. Every reasonable presumption in favor of the general verdict will be indulged in, while nothing will be presumed in favor of the special'findings.</p> <p>6. If the writ was placed in the sheriff’s hands within sixty days from the time the levy was made and the returns filed he cannot be held liable as a trespasser on the theory that the writ was functus officio.</p> <p>7. The sheriff seizing goods in pursuance of a writ issuing out of a court of competent jurisdiction is protected against an action by the judgment debtor owning the property unless there has been an abuse of authority.</p> <p>• 8. To render the sheriff liable as a trespasser ab initio • it must be shown that in making the levy he was so grossly negligent as to indicate a wilful intention to exceed his authority, or that his acts subsequent to the levy were of such character as to make it appear that he was influenced by motives of malice or corruption.</p> <p>9. The word “oppressive” in its ordinary sense means an act of cruelty, severity, unlawful exaction, domination or excessive use of authority, and if the finding that the defendant acted “oppressively” is sufficient to render him liable there is not conflict between the general verdict on the theory that the sheriff was a trespasser in making an execution levy, though the jury do not affirmatively find that the writ was in the sheriff’s hands, more than 60- days before the levy so as to make him liable on the theory that the writ was functus officio.</p> <p>10. The seizure of $700 worth of