{ "id": 3284695, "name": "Seferino Crolot, Appellee, v. Thomas Maloy, Appellant", "name_abbreviation": "Crolot v. Maloy", "decision_date": "1882-01-14", "docket_number": "", "first_page": "198", "last_page": "211", "citations": [ { "type": "official", "cite": "2 N.M. 198" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "5 Mo., 521", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8855113 ], "opinion_index": -1, "case_paths": [ "/mo/5/0521-01" ] }, { "cite": "18 Tex., 58", "category": "reporters:state", "reporter": "Tex.", "weight": 2, "opinion_index": -1 }, { "cite": "21 Mo., 14", "category": "reporters:state", "reporter": "Mo.", "pin_cites": [ { "page": "15" } ], "opinion_index": -1 }, { "cite": "4 Conn. 71", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 12121959 ], "opinion_index": -1, "case_paths": [ "/conn/4/0071-01" ] }, { "cite": "68 Ill., 250", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2626676 ], "opinion_index": 0, "case_paths": [ "/ill/68/0250-01" ] }, { "cite": "4 Black, 63", "category": "reporters:scotus_early", "reporter": "Black", "opinion_index": 0 }, { "cite": "6 Ind., 5", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1446575 ], "opinion_index": 0, "case_paths": [ "/ind/6/0005-01" ] }, { "cite": "13 Wend., 283", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2015700 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/wend/13/0283-01" ] }, { "cite": "6 Humph., 264", "category": "reporters:state", "reporter": "Hum.", "case_ids": [ 11267045 ], "opinion_index": 0, "case_paths": [ "/tenn/25/0264-01" ] }, { "cite": "2 Wis. 270", "category": "reporters:state", "reporter": "Wis.", "opinion_index": 0 }, { "cite": "18 Tex., 58", "category": "reporters:state", "reporter": "Tex.", "weight": 2, "pin_cites": [ { "page": "88" }, { "page": "92" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 918, "char_count": 26935, "ocr_confidence": 0.449, "pagerank": { "raw": 4.303220374920641e-07, "percentile": 0.9168028715187643 }, "sha256": "7d6132b06d15924a91d3e8fa73f05e12088d8691051682ba265c80bae3512027", "simhash": "1:92a36f0018575ce0", "word_count": 4705 }, "last_updated": "2023-07-14T18:34:36.747853+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "All concur." ], "parties": [ "Seferino Crolot, Appellee, v. Thomas Maloy, Appellant." ], "opinions": [ { "text": "Bristol, Associate Justice:\nThis case was originally brought by the appellee, Crolot, against the appellant, Maloy, before a justice of the peace of Santa Fe county, in the first judicial district, by attachment. The amount claimed as due him from the defendant is ninety-nine dollars.\nNo property of the appellant seems to have been attached, but one John Faber was summoned as garnishee, who appeared and acknowledged an indebtedness to the ajipellant in the sum of thirteen dollars. Both parties appeared before the justice. There is no record before this court showing that any pleadings were put in before the justice by either party, either oral or otherwise, except the affidavit of appellee for attachment, stating, among other things, that the appellant, Thomas Maloy, owes him, after allowing the just credits and offsets, the sum of ninety-nine dollars, which debt arose upon money which the said Thomas received belonging to the said Seferino Crolot, and a written plea of the appellant, not traversing the affidavit as to the alleged cause of action, constituting the indebtedness, but denying the statements in the affidavit as to the specific grounds for the attachment.\nA jury having been waived, the 'cause was tried before the justice, who found and entered judgment in favor of the appellee, in the sum of sixty dollars, and costs.\nFrom this judgment an appeal was taken to 'the district court for the first judicial district and county of Santa Fe, where the cause was tried de novo, before a jury, who rendered a verdict for appellee in the sum of ninety-nine dollars, and judgment for him in that sum and costs was entered accordingly. The case is here on appeal from that judgment.\nThe errors assigned are: First. There is no evidence to sustain the plaintiff\u2019s claim. Second. The court below erred in ovenmling the motion for a new trial.'\nThe law of this territory governing proceedings in civil actions before justices of the peace specifically provide how-parties may form an issue to be tried. Section 23 of the act relating to justices of the peace, provides as follows : \u201cUpon return of any process, each party may plead orally, but shall give a bill of particulars of his demand, if required by the justice or opposite party \u201d: Prince\u2019s ed., Laws N. M., 89.\nSection 13 of the same act provides that, \u201c every justice .shall keep a docket,\u201d in which he shall enter among other things, \u201c a brief statement of the nature of the plaintiff\u2019s demand, and the amount claimed.\u201d Id., 88.\nSection 36 of the same act provides for impanelling a jury to try the cause \u201c after issue joined.\u201d Id., 92.\nWhile the statute provides that the pleadings may be oral, and that the plaintiff\u2019s cause of action shall be entered in the docket of the justice by a brief statement thereof, yet this is directory merely, and does not preclude the filing of written pleadings, setting out a cause of action by the plaintiff, and a denial thereof, or statement of any other defense by the defendant.\nThough strict formality is not required in pleadings before a justice of the peace, and they are to be treated with great liberality with a view to substantial justice between the parties, yet the substance of an issue in some way must be formed : Phillips v. Bridges, 2 Wis. 270. The technical rules of common-law pleading can have no application to suits before justices of the peace: Bodenhamer v. Bodenhamer, 6 Humph., 264. In such suits, any allegations or indorsements in writing, or accounts sued on in whatever form they may be, if sufficient to apprise the opposite party of what is intended, and which would be sufficient to bar another suit for the same cause, should be considered good pleading. In the case of Stone v. Case, 13 Wend., 283, it was decided in effect that if the plaintiff\u2019s statement of a cause of action in a justice\u2019s court b'e objected to by the defendant as insufficient in substance to constitute' a cause of action, and the justice decides that it is sufficient, when in fact it is defective in substance, the judgment will be reversed. But this rule cannot be applied to judgments of justices of the peace in this territory, as whatever may be the errors in law committed by the justice in a case of which he has jurisdiction of the subject matter, on appeal to the district court the case must be tried on its merits de novo. On such appeal, however, the rule laid down in Stone v. Case, supra, would apply - if the defects in the declaration were not cured by amendment. As the case is to be tried de novo on such appeal, amendments would be allowed by the court. No pleading, oral or in writing, on the part of the defendant, is necessary to raise an issue on the plaintiff\u2019s statement of a cause of action, as the general issue will be considered as in by law, and need not be formally pleaded: Howard v. Cobb, 6 Ind., 5; McHatton v. Bales, 4 Black, 63.\nThere is nothing, in the record before us showing that in the court below there were any allegations of the appellee on file, or any entry in the justice\u2019s docket, showing that he had a cause of action, except that already stated as a part of his affidavit for an attachment made before the justice at the inception of the suit, to wit: a money demand of ninety-nine dollars, belonging to the appellee, and had and received by the appellant. This, though nowhere appearing in the proceedings, except in the affidavit, was a sufficient declaration on the part of the appellee, to authorize a trial, especially as no objection to its sufficiency was interposed by the appellant. If the appellant considered that he was not sufficiently apprised of the cause of action, he might have demanded a bill of particulars under the statute, or he might have demurred.\nThe evidence is all made a part of the record by a bill of exceptions, and is before us.\nThe evidence discloses the fact that the cause of action that was really tided was a demand of ninety-nine dollars for work and labor performed by the appellee for the appellant, and at his instance and request. There is no evidence whatever to support the claim for money had and received. Is this good ground for reversing the judgment if there is sufficient evidence of work and labor performed by the appellee for .the appellant, and unpaid for, to sustain the verdict, had that been the issue ?\nWe are of the opinion that it is not. The conduct of both parties during the whole trial was such as to amount to an abandonment, by mutual consent, of the original issue as to money had and received, and to the substitution of the issue for work and labor. This might be done though there were no formal pleadings, oral or written, to that effect. The appellant raised no objection to the evidence introduced by the appellee to support the claim for work and labor, but instead, thereof, introduced evidence in rebuttal upon that issue, and no other. J3y this, he must be considered as having accepted that issue, and as having waived any objections he might have urged against the competency of appellee\u2019s evidence, to sustain his original claim for money had and received. It is clear, however, that had the appellant stood upon his rights and objected to such evidence as not being pertinent to the issue, and the same had been overruled, and the appellant forced to trial without any amendment of the pleadings, it would have been error and good ground for reversing the judgment.\nThe case of Allen v. Nichols, Jr., 68 Ill., 250, in some respects was similar to this. The plaintiff, before a justice, sued the defendant in trover for the value of a wagon, and recovered judgment in the sum of $40. On appeal to the circuit court, evidence of a witness was received without objection tending to show that the plaintiff, who sued as administrator of one Hiram Allen, deceased, was entitled to \u2014not the value of the wagon sued for \u2014 -but the sum of $10, which the deceased, during his lifetime, had furnished towards paying for the wagon. The jury found a verdict in the circuit court in favor of the administrator for this $10, instead of for the value of the wagon in trover, which would have been, at least, $35. Judgment for the $10 was rendered by the circuit court after overruling a motion for a new trial. On appeal to the supreme court, that court refused to disturb the judgment, as no objection had been interposed to the evidence respecting the $10 claimed.\nOn this point the court said, \u201c Where evidence is received or a witness admitted without'objection, we must presume that all grounds of exception are waived, and having been waived, the party cannot afterward object.\u201d\n. The court, in that case, took occasion further to say that, \u201c In a justice\u2019s court there are no pleadings, and it has been held by this court that the plaintiff is not required even to file an account in a suit before a justice of the peace; and on bringing an action in that court, if the plaintiff proves any grounds of recovery, he is entitled to a judgment, if the justice of the peace has jurisdiction of the subject matter.\u201d This general doctrine thus laid down by the supreme court of Illinois is too broad to be applied to suits before justices of the peace in this territory under our present statute, except in cases where evidence is introduced without objection in reference to causes of action not embraced in any pleadings, but we quote the rule established in that state to show to what extent the courts have gone in their liberal construction of pleadings and proceedings in justice\u2019s courts.\nThe evidence in the case now under consideration disclosing, as it does, the issue that was actually tried by the implied assent of the parties, and the same being a part of the record, the appellant is well protected against any future prosecution for the same cause. The testimony of the appellee in his own behalf, if true, is sufficient to sustain the verdict.\nSuch evidence is flatly contradicted by the testimony of the appellant, but it was the exclusive province of the jury to determine the weight and credibility of all the testimony. Such determination is not subject to review by this court.\nThe record discloses no error.\nJudgment affirmed.\nAll concur.", "type": "majority", "author": "Bristol, Associate Justice:" } ], "attorneys": [ "Gonway & Risque, for appellant.", "Fislce db Warren, for appellee." ], "corrections": "", "head_matter": "Seferino Crolot, Appellee, v. Thomas Maloy, Appellant.\nJanuary 14, 1882.\nJustice oe the Peace. (1) Pleadings, whether to be \u00bfwritten or oral.\nSame. (2) Same, must be sufficient to malee an issue.\nSame. (3) Same, common-law rules of, not applicable injustice\u2019s court.\nSame. (4) Same, what writings may form.\nSame. (5) Appeal from, no reversal, but tidal de novo to be had, in district court.\nPleading. (6) General issue need not be pleaded in writing.\n\u25a0Justice oe the Peace. (7) Pleading, affidavit in attachment held sufficient decla/ralion.\nBill on Particulars. (8) When it may be ashed.\nJustice oe the Peace. (9) Substitution of demands before.\nEvidence. (10) Jury to judge of weight and credibility.\n1. The statute, secs., 13, 23 and 36, relating to justices of the peace, Prince\u2019s Laws N. M., pp. 88, 89, 92, providing that the pleadings before a justice of the peace may he oral, and that the plaintiff\u2019s cause of action shall be entered on the docket of the justice by a brief statement thereof, is directory merely, and does not preclude the filing of written pleadings, setting out the cause of action by the the plaintiff and a denial thereof or statement of any other defense by the defendant.\n2. Though strict formality .is not required in pleadings before a justice of the peace and they are to he treated with great liberality with a view to substantial justice between the parties, yet the substance of an issue in some way must be formed.\n3. The technical rules of common-law pleading have no application to suits before justices of the peace. \u2022\n4. In such suits any allegations or indorsements in writing or accounts sued on in whatever form they may be, if sufficient to apprise the opposite'party of what is intended and which would be sufficient to bar another suit for the same cause, should be considered good pleading.\n5. The rule that if the plaintiff's statement of a cause of action he objected to by the defendant as insufficient in substance to constitute a cause of action, and is erroneously decided to be defective in substance, the judgment will be reversed, cannot be applied in appeals from judgments of justices of the peace in New Mexico, as, whatever may be the errors in law committed by the justice in a case of which he has jurisdiction of the subject matter, on appeal to the district court, the case must be tried on its merits de now.\n6. No pleadings, oral or in writing, on the part of the defendant are necessary to raise an issue on the plaintiff\u2019s statement of a cause of action as the general issue will be presumed by law, and need not be formally pleaded.\n7. Where no written pleadings were filed, and no entry made on the justice\u2019s docket showing that plaintiff had a cause of action, a state'ment in an affidavit for an attachment that the demand is a money demand for $99 belonging to plaintiff and had and received by the defendant, is a sufficient declaration by plaintiff to warrant a trial, , especially as no objection to its sufficiency was interposed by the defendant. ' \\\n8. A defendant in a suit before a justice of the peace, considering himself not sufficiently apprised of the cause of action, may demur or demand a bill of particulars.\n9. A plaintiff in an action before a justice of the peace for money had and received, may substitute another demand, e. g., a demand for work and labor done by plaintiff for defendant. And where the defendant makes no objection to the evidence introduced to support the claim for work and labor, but instead of objecting, introduces evidence in rebuttal upon that issue, he will be considered as having waived any objections he might have urged against the competency of plaintiff\u2019s evidence to sustain his original claim for money had and received.\n10. It is the exclusive province of the jury to determine the weight and credibility of testimony, and their determination is not subject to \u2022 review.\nAppeal from tbe District Court of Santa Fe county.\nThis is an action brought by attachment before a justice of the peace in Santa Fe county, taken from that court by appeal to the district court, said county, and thence by appeal to this court. Claim was made for ninety-nine dollars for money received by said defendant belonging to plaintiff., Judgment in district court was for full amount claimed. The plaintiff below was the only witness to sustain claim, and upon his testimony alone the truth or falsity of the existence of a just claim depended. The principal error relied upon by appellants is the failure'of the court below to grant a new trial upon all the facts brought out by plaintiff, and upon the affidavit filed by defendant in support of motion for new trial.\nGonway & Risque, for appellant.\nThe evidence did not sustain the claim made by plaintiff below, as no proof was given to show that defendant bad received any money whatever pertaining to plaintiff.\nThe court should have granted a new trial. The action of the court in refusing so to do was an unsound use of its discretion, and this court has power to review such action when clearly wrong: Hibbard on New Trials, title \u201c Surprise,\u2019\u2019 p. 521, secs. 1, 3, 5, note \u201c A,\u201d and authorities there cited; California Digest, New Trials, head \u201cSurprise,\u201d and authorities there cited.\nFislce db Warren, for appellee.\nThe courts of justices of the peace are of special and limited jurisdiction, and have no powers except those conferred by statutes.\nSec. 19, p. 129, and sec. 38, p-. 143, Revised Statutes of N. M., Prince\u2019s ed., provides for denying the truth of the affidavit in attachment in the district courts, and a separate trial upon the issue thus made, but there is no statute of the territory authorizing such issue and trial in cases before justices of the peace.\nSec. 120, p. 109, and sec. 77, p. 101 Revised Statutes N. M., Prince\u2019s ed., provides for trial de novo in appeals from justices of the peace to the district courts, and that in the trial in the latter court on such appeals the rules of courts of justices of the peace shall govern.\nThere is positive evidence in the record to support the verdict of the jury in this case, and nothing therein to show ground for setting same aside on motion for new trial. The affidavit upon which that motion was chiefly based was defective in many particulars, and notably in not stating when the witnesses who were to give the newly discovered testimony could be produced in court, or that they could ever be so produced: Bouvier\u2019s Law Diet., 12th ed., vol. 2, p. 222, secs. 9 and 10.\nThe court properly overruled the motion in arrest of judgment. This motion was made because there was \u201c nothing in the pleading or complaint filed which would support a judgment.\u201d \u25a0 We submit that the record does not support that conclusion, and especially see the attachment affidavit, but if it did, it would make no difference' in this case. A mere appearance in the justice\u2019s court is all that the rules or customs of that court in this territory require, and there need be no written complaint or pleadings there. The record shows that the appellant appeared before the justice.\nBut even if he had never appeared, the case, when taken on appeal, was governed in the district court by the rules applicable to the court of the justice of the peace: Rev. Stats., Prince\u2019s ed., p. 101, sec. 77. No complaint or pleadings in the case were required in the justice\u2019s court, and consequently none on appeal in the district court. The appellant did not, when he appeared in the district court, raise any question denying jurisdiction, but by his general appearance he waived all jurisdictional objections, and he was properly in court regardless of all matters of complaint or pleadings.\nOf the authorities cited in appellant\u2019s brief, the California cases are based upon the code of that state: Revised Stats. Cal., vol. 2, p. 1000, sec. 10657 and p. 1003, sec. 10662.\nOf the remaining citations, all from the American decisions: Brown v. Frost, 2 Bay. (S. Ca.), 126, vol. 1, p. 633, is a case treating of when the court below in the exercise of its discretion may grant a new trial. In Boss v. Overton, 2 Cal. Va., 309, vol. 2, pp. 552, 555, the court says, that a new trial, because the verdict was contrary to the evidence, \u201cought to be granted only in case of a plain deviation and not in a doubtful case, merely because the court if on the jury would have given a different verdict.\u201d In Houston v. Gilbert, 3 Brown (S. Ca.), p. 63, vol. 5, pp. 542, 547, the verdict was set aside because it was \u201c unlawful,\u201d etc., requiring the defendant to find his slave at a remote place. See the case for peculiarities of the verdict. '\nEagle Bank w. Smith, 4 Conn. 71, vol. 13, pp. 37, 38. The verdict in this case was clearly against the evidence, and was so held under a statute of Connecticut (Conn. Stats. 54, sec. 68), providing for such cases in the following language : \u201c That the verdict is against the evidence in the cause.\u201d\nTurnbull v. Rivers, 3 McCord (S. Ca.), 131, vol. 15, pp. 622-5. On page 625 Am. Dec.', vol. 15, the court says: \u201c The court will therefore grant a new trial toties quoties, where the verdict is contrary to law, and where there is no evidence on which the jury can find a verdict.\u201d\nAm. Dec., vol. 20, pp. 156-8 (3 J. J. Marshall, Ky., 440). On page 158, the court says: \u201c A new tidal ought to have been granted for the foregoing reasons ;\u201d and proceeds saying, the evidence is of such a character \u201c as to leave no reasonable excuse for doubt in an intelligent and disinterested mind.\u201d See, also, MoGarroll v. Stafford, 24 Ark., 22S ; Territory of Mew Mexico v. Webb, a/nte, 147.\nIn Tennessee, proceedings before justices are commenced by summons which the statute of Tennessee requires, shall set out the form of action : Tenn. Code, sec. 4146. There is no proyision in that code that the proof shall govern regardless of the pleadings, except in cases where one of the parties fails to appear. In such cases, the Tennessee Code provides that the justice shall \u201c hear the allegations and proof of the\u201d party present, \u201cand shall render judgment thereon :\u201d Tenn. Code, secs. 4155 and 4156.\nThe statute of New Mexico provides that in the absence of either party, the \u201c justice shall proceed to hear the proofs \u201d (not combined with the allegations, as in Tennessee) \u201cof the party present, and render judgment thereon : \u201d Rev. Stats. N. M., Prince\u2019s ed., p. 92, sec. 85.\nIn Tennessee, the justice must furnish on appeal, a transcript \u201c including the process and written evidence filed, and .the entries on his docket:\u201d Code Tenn., sec. 4164. And in the court on appeal, the \u201ccourt shall allow all amendments to the form of action : \u201d Code Tenn., sec. 4177.\nThis is substantially what the Statutes of New Mexico require as to transcript, but the Tenn. Code, sec. 4177, presupposes a written \u201c form of action,\u201d which may be amended on appeal, while the statutes of New Mexico expressly provides that \u201c each party may plead orally: \u201d Rev. Stats. N. M., Prince\u2019s ed., p. 89, sec. 23.\nYet the suprem\u00e9 court of Tennessee say in an action in which the cause of action was stated to be \u201c in a plea of debt that these words of a \u2018 plea of debt \u2019 must be moulded to apply to accounts, assumpsit, to damages for the non-compliance with a contract or legal duty,\u201d etc. : BodenJiamer'v. Bodenhamer, 6 Hump. (Tenn.), 267-8.\nIn Illinois the statute sets out clearly and distinctly the different forms of actions to be used in justice courts, such as money had and received, goods sold and delivered, work and labor, etc.: Rev. Stats. Ill, yol, 1, p. 686. Also, that \u201c the justice shall proceed to hear and examine the \u201c respective allegations and proof, and shall thereupon give judgment\u201d against the party proved to be indebted : Rev. Stats. Ill, vol. 1, p. 702.\nThe statutes of New Mexico are much more liberal in this respect than the statutes of Illinois, in that our statutes do not require technical causes of action to be filed, or any written mention of cause of action, but expressly provides the pleadings may be oral: Rev. Stats. N. M., Prince\u2019s ed., p. 89, sec. 23. And in Illinois \u201c the allegations and proof \u201d are to determine the justice\u2019s action (Rev. Stats. 111., yol. 1, p. 702), while in New Mexico the rule in justice\u2019s courts, so far as shown by our statutes, require the justice to be guided by the \u201c proof \u201d alone, regardless of the \u201c allegations Rev. Stats. N. M., Prince\u2019s ed., p. 92, sec. 35.\nYet the supreme court of Illinois hold that proof alone must determine the right to recover before a justice of the, peace, and \u201c although the plaintiff or the justice might call the case ejectment or larceny, the statute requires the court to hear the proofs, and if it makes out a case of which the justice has jurisdiction, the plaintiff is entitled to recover: Ghieago etc. JR. JR. v Reid, 24 111., 144; Bfewster v. Grover, 29 111., 248.\nIn Missouri the law requires it should be the \u201c same cause of action tried on appeal that was tried before the justice,\u201d and the court says it will not consider \u201c any technical inaccuracies as to the name of the action., whether it be for work and labor, or on account of wages, or quantum meruit, or on special agreement:\u201d Metz v. Eddy, 21 Mo., 14,15.\nIn Texas, a judgment containing nothing more than the heading of the justice\u2019s judgment, in this case was held good: Wahrenlerger v. JHJoran, 18 Tex., 58.\nIn Mississippi, \u201c cases brought from justice of the peace into the circuit court may be tried without any written pleadings whatever,\u201d and even \u201ccharacter of the party suing could be shown by evidence,\u201d that is, a party might sue in his individual capacity, and recover in a representative capacity : EJairston v. Eraneher, 7 S. & M. (Miss.), 249 and 255. \u201c The proceedings in actions before a justice of the peace are throughout in a summary manner, without the forms of pleading :\u201d Thurston v. MoGlamahan, 5 Mo., 521.\nThe pleadings in this case were oral and distinct from the attachment proceedings, and the fact that the justice noted down in his docket only the names of parties and the words \u201cDebt No. 99,\u201d which was before the district court on appeal, is sufficient: 6 Hump. (Tenn.), 267, 268 ; 18 Tex., 58 ; 24 111., 144; 29 111., 248; 7 S. & M. (Miss.), 249, all cited above. And it is especially sufficient, because a failure of the justice of the peace to note down in writing oral pleadings cannot prejudice the parties : Sinnamon v. Melbown, 4 G-reen (Iowa), 310.\nUnder our statute failure of the district court in that regard had the same effect as in the justice court, and no more.\nBut if the attachment proceedings are the pleadings, then they must all be examined to find the cause of action ; that is, not the affidavit alone, but the bond, writ and citation, or, in other words, all the papers filed by plaintiff below, before the appearance of the defendant. These show amonev demand, or debt due, without reference to technical forms of, action, and that is sufficient under the authorities cited.\nThere was no surprise, because the justice law of New' Mexico provides that if the pleadings are not specific enough, or, in the words of the act, if the \u201c opposite party \u201d require it, the plaintiff shall furnish \u201c a bill of particulars of his demand,\u201d and \u201cthen\u201d the justice may, on cause shown, adjourn the cause not exceeding thirty days : Rev. Stats. N. M., Prince\u2019s ed., p. 89, sec: 23. If the pleadings were not satisfactory in the justice court, or, under our statute, in the district court, he had his remedy by demanding a bill of particulars.\nBut, if we admit in this case :\n1st. That the oral pleadings were not sufficiently stated in writing outside the attachment proceedings.\n2d. That the failure of the justice of the peace or of the district court to note the oral pleadings down in writing was a fault or error which can prejudice us here.\n3d. That attachment proceedings are pleadings; that being such, they state a technical cause of action, money had and received; and, notwithstanding the authorities cited to the contrary, that we were bound to prove a technical case of money had and received. \u25a0\nThen we say there could be at most only a variance which was cured by the verdict. In this case, the testimony of \u201c work and labor \u201d was not only admitted without objection, but appellant introduced evidence to rebut it, showing conclusively that appellant was not surprised, but fully understood and acquiesced in and assented to the issue below.\nOn this point the .supreme court of Mississippi say : \u201c But for a variance the proper course is to exclude the proof; and no motion to that effect was made. The testimony was admitted without objection : Stiers v. Swrget, 10 Smedes and M. (Miss.), 158." }, "file_name": "0198-01", "first_page_order": 214, "last_page_order": 227 }