Armstrong v. Aragon.

• Citation: 79 P. 291,13 N.M. 19
• Parties: ARMSTRONGv.ARAGON.
• Decision Date: 17 January 1905
• Court: Supreme Court of New Mexico

13 N.M. 19

79 P. 291

ARMSTRONG

v.ARAGON.

Supreme Court of the Territory of New Mexico.

Jan. 17, 1905.

Syllabus by the Court.

1. Where there is no evidence to sustain a verdict against a defendant, or where the court would be compelled to set aside a verdict against a defendant if returned, the court has power to direct a verdict in favor of defendant. Candelaria v. A. T. & S. F. Ry. Co., 27 Pac. 497, 6 N. M. 266; United States v. Gumm Bros., 58 Pac. 398, 9 N. M. 616.

2. Testing the facts of this case by the rule just stated, and by the provisions of sections 3199-3212, Comp. Laws 1897, there was no error in instructing the jury to find for the defendant.

3. Under the facts disclosed by the record, the court committed no error in overruling the motion for a new trial upon the ground of newly discovered evidence. Ruhe v. Abren, 1 N. M. 247.

Appeal from District Court, Lincoln County; before Justice Frank W. Parker.

Action by R. D. Armstrong against Manuel Aragon. Judgment for defendant, and plaintiff appeals. Affirmed.

This is a suit brought by the appellant, Robert D. Armstrong, under sections 3199 to 3212 of the Compiled Laws of 1897, against Manuel Aragon, to recover the sum of $100, alleged to have been paid by said Armstrong to said Manuel Aragon through one E. W. Hulbert, as stakeholder, as the result of a bet or wager upon the result of the election of sheriff at the general election held in said county on November 4, 1902. Upon the trial of the case the plaintiff, Armstrong, testified that on November 8, 1902, he wagered the sum of $100 against $200 with the defendant, Aragon, upon the result of the race for sheriff of the county of Lincoln. The two amounts-$100 put up by Armstrong, and $200 put up by Aragon-were at the time placed in an envelope and sealed at Aragon's saloon, and thereupon a question of stakeholder arose. Manuel Aragon being busy at the time, it was agreed between the parties that Jacobo Aragon, a brother of the defendant, should accompany plaintiff to the office of a designated third party to place the money in his hands as stakeholder. That person declined to act in the matter, and thereupon Jacobo Aragon and plaintiff went to E. W. Hulbert, and placed the money in his hands as stakeholder; but plaintiff testified that he did not know whether Manuel Aragon authorized Jacobo to go with him to Hulbert or not. Plaintiff further testified that he had never received the money back, but that, on the contrary, upon making back, but that, on the contrary, upon making demand upon Manuel Aragon for said $100, some 10 months after the wager, Aragon replied that “he didn't know plaintiff, had made no bet with him, didn't know him in the bet, and that said bet was made with one Jose Antonio Garcia.” Emile Ozane, another witness, testified that he was present at the time of a wager; that $200 was put up by Manuel Aragon, and $100 by Armstrong, and placed in an envelope; and that the bet was made upon the result of the election for sheriff. E. W. Hulbert testified that on the night of November 8, 1902, the plaintiff and Jacobo Aragon placed in his hands, as stakeholder, a sealed envelope; that he did not know how much was in the envelope until after the money had been turned over by him; and that it was finally turned over by him to Jacobo Aragon some time in the month of November, after the election. This was all the evidence presented on the trial material to the present inquiry. Upon the close of the testimony for plaintiff, counsel for defendant moved the court to instruct the jury to find a verdict for the defendant. Thereupon the court announced to counsel for plaintiff that there was a failure of proof as to the receipt by the defendant of the money sought to be recovered, but plaintiff declined to introduce further proof, and under instructions of the court the jury returned a verdict for defendant. A motion for a new trial was filed, alleging among other grounds that the plaintiff had discovered new and material evidence, to wit, the testimony of William S. Brady. The affidavit of the latter, which was filed with the motion, sets forth an alleged conversation with the defendant, Manuel Aragon, in the month of November, 1902, and within 10 days after the result of the general election had been declared, in which affiant asked Aragon “if he had taken up the bet with Jose Antonio Garcia” to which Aragon replied, “‘No’, that Armstrong had taken it up with him, and that he (Aragon) had won one hundred dollars from Armstrong, and had got the money.” The affidavit further sets forth that affiant had not mentioned the subject to Armstrong or his attorneys until after the trial of the cause. The motion for a new trial having been overruled, and judgment having been entered for the defendant, plaintiff appealed to this court.

It is proper to direct a verdict for one party where it would be necessary to set aside a verdict for the adverse party.

George W. Prichard and George B. Barber, for appellant.

Bonham & Holt, for appellee.

POPE, J. (after stating the facts).

The record presents two questions: First, did the court err in instructing the jury to find a verdict for the defendant? And, second, did the court error in refusing to grant a new trial upon the showing made?

Upon the first of these propositions, it is the well-settled rule in this territory that where there is no evidence to sustain a verdict against the defendant, or where the court would be compelled to set aside a verdict against the defendant, if returned, the court has power to direct a verdict in favor of the defendant. Candelaria v. A., T. & S. F. Ry. Co., 6 N. M. 266, 27 Pac. 497; United States v. Gumm Bros., 9 N. M. 616, 58 Pac. 398. Was the action of the court in withdrawing the case from the jury within this rule? This suit was instituted under sections 3199-3212 of the Compiled Laws, providing that any person losing money or property at any game of cards or at any gambling device (in which is included, by section 3208, bets and wagers on elections authorized by the laws of this territory) “may recover the same, if money, by action of debt, if property, by action of trover, replevin or detinue.” By section 3200 it is provided...