Lohman v. Reymond

Citations

• 18 N.M. 225
• 137 P. 375

Syllabus

<p>SYLLABUS.</p> <p>1. Where, in a suit to compel an accounting by trustees, cross-complainant, at the time 'of filing his cross-complaint for appointment of a receiver, was justified from the record in believing that he would only be required to present and prove his title to claims transferred to him in the receivership proceeding, and for that reason only set up the assignment of such claims to his capacity to join in the suit to compel the trustees to account, his cross-complaint was not based on the instrument of assignment; and hence the assignment, when offered in evidence, was not objectionable because such instrument, or a copy thereof, was not filed in compliance with Code Civ. Proc., sub-sec. 307, (Laws 1907, c. 107), providing that, when any instrument of writing on which the action or defense is found is referred to in the pleadings, the original or a copy shall be filed with the pleading, if within the power or control of the party wishing to use the same, and if the original or a copy be not filed or a sufficient reason given for the failure to file it, the instrument may not be admitted in evidence.</p> <p>P. 231</p> <p>2. Where, in a suit to compel trustees to account, the trial court did not hear all of the witnesses testify, an assignment that the court erred in finding that certain claims has been assigned to cross-appellant L. required a review on appeal of all the evidence in the case.</p> <p>P. 234</p> <p>3. An instrument in the form of a release of claims of three creditors of an insolvent against the insolvent’s trust estate to L., together with the oral testimony explaining the .same, might be properly held to amount to an assignment of .such claims to L.</p> <p>P. 234</p> <p>4. Alteration of an instrument by interlineation by one who was acting as a friend of both parties, and who drew the original instrument at a time prior to his becoming interested in behalf of either party, was not a fatal alteration.</p> <p>P. 235</p> <p>5. Where cros