Clark v. Apex Gold Mining Co.

OPINION OF THE COURT.' ABBOTT, J. 1 It is claimed by the appellant that the allegations in his complaint, sufficient to establish his cause.of action and right to the relief prayed for,-.are not denied by the answer. That claim is based, in part, on the form of the denial used, which is that the defendant has not “knowledge or information sufficient -to form a belief” as to the matter alleged. Such an answer is sufficient to put the plaintiff to the proof of the-material fact as to which it is made. Sub-Sec. 10 of Sec. 2685, Compiled Laws of 1897; 1 Ene. PI. '& Pr. pp. 808, 809, 877; Bliss on Code Pleading, Sec. 326. 2 We come next to the question whether the plaintiff has established by evidence his right to maintain in his own name, as a shareholder in the Apex Gold Mining Company, an action which ordinarily could be brought only in the name of the company itself. That question was determined by the trial court in the negative. It found as a fact that there was not sufficient evidence submitted in the cause to sustain the allegation of fraud on which the plaintiff based ’this action and his right to maintain it as an individual shareholder. Findings of the trial court without a jury on questions of fact, have the same standing as the verdict of a jury in this court, and a judgment based on such finding will not ordinarily be reversed if there is any substantial evidence to support it. Torlina v. Trorlicht, 5 N. M., 148 and cases cited. Field v. Romero, 7 N. M. 630; Givens v Veeder, 9 N. M., 256; Cohnan v. Romero, 11 N. M., 533; Ortiz v. First National Bank of Las Vegas, 78 Pac. 529; Candelaria v. Miera, decided at the present term. Certainly it cannot be said that there is no sufficient evidence to support the finding now in question. 3 There were, it is true, circumstances disclosed by the evidence which, unexplained, might well have led the plaintiff to suspect the existence of the fraud and collusion .which he alleged in his complaint. It appeal’s affirmatively from the evidence, however, that the tax judgment which the plaintiff asks to have set aside, was in existence months before the defendants who were charged with fraud and collusion in relation to it, had any part in the management of the affairs of the Apex Gold Mining Company; that apparently there was no one sufficiently interested in it to furnish money for the payment of that or other claims against it, except the der fondant Smith, who, after he became president, in November, 1900, made some advances for such purposes from his own funds; that the defendant, Broekway, had no authority from the Apex Gold Mining Company, or its directors, for anything he did in the premises, that he did not use its money for the purchase of the real estate sold under the tax judgment, nor did Watson- use ’its money, or that of any one of the defendants, in the purchase of it. The claim of the plaintiff to the contrary, rests mainly on the evidenee that Broekway, prior to the sale under said judgment, said he had come to New Mexico to settle the claims against the Apex Gold Mining Company, and showed the money which he said he had brought for the purpose. It may be that he came with that intent and found the affairs of the company in such condition that his purpose was abandoned; but, certainly, the fact, if it was one, that he once made such a statement, could not outweigh the direct testimony that he did not finally act under the authority or with the funds-'of the company. There remains, therefore, no ground alleged in the complaint on which the plaintiff can maintain this action under what we understand to be the prevailing rule as stated in the case of Hawes v. Oakland, 104 U. S., p. 450, and given in' substance in the Syllabus. See also, 4 Thompson on Corporations, Sec. 4501. Such being our conclusion, we do not think it necessary to consider the other questions raised by the appellant, except.that relating to the allowance of costs by the district court. Assuming that the motion to re-tax the costs ' was seasonably made, we still see no reason for interfering with the decision of the district court, in the matter of charging the plaintiff with the amount paid the custodian of the property in controversy, during the litigation, who was appointed by the court, on motion of the plaintiff, as part of the costs. The decision of the trial court in such a question is generally treated as final, unless there has been a clear abuse of discretion. Pearce v. Castain, 3 Ga. 226; Clark v. Reid, 11 Pick. (Mass.) 446; Shields v. Rogiolo, 7 Mo. 136; Trustees v. Greenough, 105 U. S., 538. Judgment of the district court affirmed. William J. Mills, C. J., John R. McPie, A. J., Frank W. Parker, A. J., Wm. H. Pope, A. J., concur. Mann, A. J., having heard the case below did not participate in this decision.