{ "id": 1557950, "name": "DAVIS et al. v. TARBUTTON", "name_abbreviation": "Davis v. Tarbutton", "decision_date": "1931-04-25", "docket_number": "No. 3569", "first_page": "393", "last_page": "395", "citations": [ { "type": "official", "cite": "35 N.M. 393" }, { "type": "parallel", "cite": "298 P. 941" } ], "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": "35 N. M. 52", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557962 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/35/0052-01" ] }, { "cite": "35 N. M. 168", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557992 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/35/0168-01" ] }, { "cite": "98 A. 982", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "90 Vt. 451", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4502608 ], "opinion_index": 0, "case_paths": [ "/vt/90/0451-01" ] }, { "cite": "2 L. Ed. 444", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 1427690 ], "opinion_index": 0, "case_paths": [ "/us/7/0174-01" ] }, { "cite": "3 Cranch, 293", "category": "reporters:scotus_early", "reporter": "Cranch,", "case_ids": [ 6758232, 1427690, 6758259 ], "opinion_index": 0, "case_paths": [ "/dc/3/0293-01", "/us/7/0174-01", "/dc/3/0293-02" ] } ], "analysis": { "cardinality": 369, "char_count": 5020, "ocr_confidence": 0.665, "pagerank": { "raw": 2.181354981292094e-07, "percentile": 0.7726853959439334 }, "sha256": "fe111b0062037951e51e286eea7fce2a2c7593f80156a17640bce1d6fa70918e", "simhash": "1:1acf35882b57e999", "word_count": 865 }, "last_updated": "2023-07-14T22:18:25.112313+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BICKLEY, C. J., and SADLER, J., concur.", "PARKER and HUDSPETH, JJ., did not participate." ], "parties": [ "DAVIS et al. v. TARBUTTON." ], "opinions": [ { "text": "OPINION OF THE COURT\nWATSON, J.\nPlaintiff recovered judgment for the price of 6 bales of cotton, plus interest and costs, and defendants have appealed.\nThe cause was tried to the court. Plaintiff\u2019s testimony was given by \u201coral examination out of court.\u201d 1929 Comp. ch. 45, art. 4. Its reception in evidence was objected to on the ground of failure to serve written notice \u201cupon the opposite party\u201d of intention to apply for an order to take the testimony. 1929 Comp. \u00a7 45-402. The objection was overruled, the order having been issued upon waiver of such notice by the attorney of record for the defendants.\nIt is contended that the waiver of notice does not satisfy the statute, and that the testimony was erroneously received.\nBy 1929 Comp. \u00a7 105-705, it is provided that \u201call service of papers, when the party to be notified has appeared by attorney, shall be made upon the attorney.\u201d If this section is applicable, we cannot doubt that the notice could properly have been served upon the attorney of record. If so, his waiver was good.\nBut appellants contend that it is not applicable. They say that, being a part of \u201can act to simplify procedure in civil cases\u201d (Code of Civil Proc. [Laws 1897, c. 73]), it \u201cdoes not apply to anything except the pleadings, motions and notices contemplated by that act, of which the provisions for taking depositions are not a part.\u201d They also say:\n\u201cThis court has in such matters as election contests, etc., held that the civil procedure act could apply only to those proceedings therein contemplated.\u201d\nThe taking of a deposition by oral examination is not a special proceeding. It is not an end in itself. It is merely in aid of some \u201ccivil cause pending in the district court of this state.\u201d 1929 Comp. \u00a7 45-401. It is as applicable to the \u201ccivil action\u201d governed by the Code (1929 Comp. \u00a7 105-101) as is section 105-705; as .applicable as if it had been originally enacted as a part of the Code. So we think the two sections are to be construed together, with the result above indicated.\nIt is pointed out that the Act of 1891 (c. 28) for taking depositions by written interrogatories (1929 Comp. c. 45, art. 1) provided for notice to the adverse party or his attorney of record. So, it is urged, the failure in the later act to specify the attorney of record as one who may be served is significant. The argument is legitimate and invokes a familiar principle; but is not controlling. Under our system and policy, great power and responsibility are reposed in attorneys at law. 1929 Comp. \u00a7 9-130. The strict construction for which appellants contend would be inharmonious 'and would come, we think, as a shock to the profession. We find nothing in Buddicum v. Kirk, 3 Cranch, 293, 2 L. Ed. 444, or in Domenchini\u2019s Adm\u2019r v. Hoosac Tunnel & W. R. Co., 90 Vt. 451, 98 A. 982, cited by appellants, suggesting a different conclusion.\nIt is further contended that it was error to receive plaintiff\u2019s testimony because the county clerk failed to give notice of the return of the deposition. Several answers are available to this contention. It seems sufficient to point out that the act under which this deposition was taken (article 4) contains no such requirement. Such notice is required by the act (article 1) for taking depositions by written interrogatories. 1929 Comp. \u00a7 45-117. It is erroneously assumed by counsel that this requirement of article 1 is incorporated in article 4 by section 45-408, which provides simply that the act shall not be construed to repeal or modify existing laws relative to the taking of depositions, but to supplement them.\nAppellants contend, finally, that \u201cthere was no evidence in support of the judgment of the court, but if there was a modicum it was so incredible, unsupported and indefinite as to fail to support the burden of proof for the plaintiff.\u201d\nThe principal issue of fact was whether defendants, or one Fuller, bought the cotton. Plaintiff clearly testified that defendants bought it. So there was substantial evidence to support the finding or conclusion that \u201cthe plaintiff sold and delivered to the defendants 6 bales of cotton. * * * \u00bb\nBut appellants contend that the substantial evidence rule does not apply to depositions, and urge circumstances in evidence as showing that plaintiff\u2019s version of the transaction is incredible. We cannot go into that. There were no findings as to those circumstances, and none were requested. A conclusion supporting a judgment will not be reviewed on the facts in the absence of specific findings or requests therefor. McKee v. Woods, 35 N. M. 168, 291 P. 292; Harris & Maldonado v. Sperry, 35 N. M. 52, 290 P. 1022, and cases cited.\nThe judgment will be affirmed, and the cause remanded.\nIt is so ordered.\nBICKLEY, C. J., and SADLER, J., concur.\nPARKER and HUDSPETH, JJ., did not participate.", "type": "majority", "author": "WATSON, J." } ], "attorneys": [ "Edward D. Tittmann ,of El Paso; Tex., for appellants.", "James W. Stagner and Caswell S. Neal, both of Carlsbad, for appellee." ], "corrections": "", "head_matter": "[No. 3569.\nApril 25, 1931.]\nDAVIS et al. v. TARBUTTON.\n[298 Pac. 941.]\nEdward D. Tittmann ,of El Paso; Tex., for appellants.\nJames W. Stagner and Caswell S. Neal, both of Carlsbad, for appellee." }, "file_name": "0393-01", "first_page_order": 421, "last_page_order": 423 }