Stalick v. Wilson

Citations

• 21 N.M. 320
• 154 P. 708

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Wliere a cause is at issue and is regularly set for trial, and the defendant has due notice of such fact and fails to appear, he is precluded from raising3 any question relating to such judgment, not jurisdictional, or the evidence to sustain the same, on appeal.</p> <p>P, 324</p> <p>2. Where a complaint is filed in a cause, which later is superseded hy an amended complaint, and a judgment is rendered which recites that the “court doth find that the allegations of the complaint are sustained by the evidence,” such language will be construed as referring to the amended complaint. P. 324</p> <p>3. Where a defendant moves to strike out a bill of particulars, filed by the plaintiff, which he fails to call to the attention of the trial court, and six months thereafter files an answer which puts the cause at issue, and interposes no objection to the setting of the cause for trial, it will be presumed that he intended to waive his motion to strike the bill of particulars. P. 325</p> <p>4. Where a party seeks relief from a judgment entered at the conclusion of a trial had in his absence, of which he had due and timely notice, he must not only set up facts, in his motion to vacate such judgment, which show that he has a meritorious defense, but he must also give a sufficient reason for his failure to appear and defend the action at the time set for the trial.</p> <p>P. 325</p> <p>5. Where, upon a final hearing upon an application for a restraining order, the petitioner is present and interposes no objection to the sufficiency of the evidence as to the damages claimed by the defendant, caused by the granting of the temporary order, and does not object to the court assessing damages upon the dissolution of the order, he cannot have the action of the court reviewed upon appeal.</p> <p>P. 326</p>