Both parties participated on this issue. The principle is well established that where issues not within the pleadings are fully litigated without objection, as here, the pleadings should be treated as amended by the trial court, and so considered by this court on appeal so as to put in issue all litigated questions. Hall v. Bryant, 66 N.M. 280, 347 P.2d 171; Berkstresser v. Voight, 63 N.M. 470, 321 P.2d 1115; Luvaul v. Holmes, 63 N.M. 193, 315 P.2d 837. The record is replete with testimony not only as to the customary practice of salvaging materials whenever possible from wells to be plugged, but as to the materials in the subject well, their possible salvage value, and whether salvage of them by the defendant was contemplated or ordered.
A general attack on findings of fact and conclusions of law covering the issues tried and determined without objection can avail appellants nothing. Hall v. Bryant, 1959, 66 N.M. 280, 347 P.2d 171; Luvaul v. Holmes, 1957, 63 N.M. 193, 315 P.2d 837. It follows that the appeal is without merit and the judgment will be affirmed.
Proof having thus been made, the complaint should be treated as amended to conform thereto. Hall v. Bryant, 66 N.M. 280, 347 P.2d 171. It is apparent that the requirement of both pleading and proof of the use of the materials in the job as announced in Tabet v. Davenport, 57 N.M. 540, 260 P.2d 722, has been met, and these points are without merit.
We will not substitute our judgment for that of the trial court as to the credibility of the witnesses. Field v. Irvin, 1929, 34 N.M. 199, 279 P. 873; Greene v. Esquibel, 1954, 58 N.M. 429, 272 P.2d 330; Luna v. Flores, 1958, 64 N.M. 312, 328 P.2d 82; Hall v. Bryant, 1959, 66 N.M. 280, 347 P.2d 171. Appellant's second point relates to the refusal of the trial court to allow him a jury trial as to his second cause of action.
New Mexico has a merged system. Hall v. Bryant, 66 N.M. 280, 284, 347 P.2d 171, 173 (1959). {6} During the evolution of the combined system, a split of authority developed regarding the award of punitive damages in equity.
We have declared that law and equity have merged; that there is now only one form of action, a civil action. Nevertheless equitable principles will apply to an equitable action. Hall v. Bryant, 66 N.M. 280, 347 P.2d 171 (1959). In Barka, supra, where district court jurisdiction was denied, Justice Bratton said: