Bank v. Mandeville.

• Decision Date: 12 August 1919
• Docket Number: No. 2325.,2325.
• Citation: 183 P. 394,25 N.M. 387
• Court: New Mexico Supreme Court
• Parties: UNION BANKv.MANDEVILLE.

25 N.M. 387

183 P. 394

UNION BANK

v.MANDEVILLE.

No. 2325.

Supreme Court of New Mexico.

Aug. 12, 1919.

Syllabus by the Court.

A motion for judgment in a case tried to the court, made by defendant at the close of plaintiff's testimony, upon the ground that there was not sufficient evidence to “prove the allegations of the complaint,” calls for a declaration of law, and admits all the facts proven by, and all reasonable inferences that could be drawn from, the evidence.

A motion for judgment in a case tried to the court, made by defendant at the close of plaintiff's testimony, upon the ground that there was not sufficient evidence to “prove the allegations of the complaint,” is in the nature of a demurrer to the evidence, and is governed by the same rules as a like motion made for an instructed verdict in a jury trial, and does not authorize the court to weigh the evidence, nor regard the case as submitted upon the facts proved by the plaintiff, and should be overruled, if, assuming the truth of all facts proven and all reasonable inferences that can be drawn from the evidence, it can be said the plaintiff made out a prima facie case.

Appeal from District Court, Doña Ana County; Medler, Judge.

Suit by the Union Bank against William B. Mandeville. Judgment for defendant on defendant's motion at close of plaintiff's testimony, and plaintiff appeals. Reversed and remanded, with instructions to grant a new trial.

This suit was brought by appellant against appellee (hereinafter referred to as plaintiff and defendant) in the district court of Dona Ana county to recover certain sums of money alleged to have been received by defendant for use and benefit of plaintiff and wrongfully appropriated to his own use while president of plaintiff bank. At the close of plaintiff's testimony a motion for a judgment for defendant, upon the ground that there was no evidence to establish plaintiff's claim, was sustained by the court, from which judgment the plaintiff appeals.

In case tried to court, defendant's motion for judgment at close of plaintiff's testimony for want of sufficient evidence to “prove the allegations of the complaint” is in the nature of a demurrer to the evidence, governed by same rules as a like motion for an instructed verdict in a jury trial.

Wade & Taylor, of Las Cruces, for appellant.

Mark B. Thompson, of Las Cruces, for appellee.

BRICE, District Judge.

It is agreed in the brief of each of the parties that there are but two questions to be reviewed here, to wit: (1) Did the plaintiff make out a prima facie case? (2) Did the court err in refusing to require the defendant to testify, on the ground that his testimony would tend to incriminate him? From the view we take of the case it will be necessary to determine only the first issue named, viz.: Did the plaintiff make out a prima facie case?

That part of the motion made by the defendant at the close of plaintiff's testimony, and upon which the judgment of the court sustaining same was based, is as follows:

“Comes now the defendant, at the close of plaintiff's case, and moves for judgment for the defendant, upon the ground that no evidence sufficient to prove the allegations of the complaint has been adduced before the court.”

Other grounds for judgment were embodied in the motion, but were not made the basis of the judgment sustaining the motion, nor are they contended for in this court. We therefore do not decide whether or not the commissions sued for can be recovered by the bank, should it appear that its contract with Hand was usurious or illegal.

[1] The motion of defendant at the close of the plaintiff's testimony called for a declaration of law, and not for findings of fact from the evidence introduced in the case. It was in the nature of a demurrer to the evidence, admitting all the facts that the evidence tends to prove and every reasonable inference that could be drawn therefrom. It is governed by the same rules as a motion made for an instructed verdict under like circumstances in a case tried to a jury.

Appellee states in his brief:

“Further than this, the court was not required to believe any witness, and, if he chose to disregard the testimony of any or all the witnesses, under the decisions of this court his verdict will be sustained. ‘The verdict of a jury will not be disturbed on appeal, when it is supported by any substantial evidence.”’

Authorities are cited to support the proposition he quotes. We refer to the above erroneous views of counsel, which probably account for the error of the court. However, the case was not submitted upon the evidence of the plaintiff for determination on the facts. Had the motion been overruled, the defendant could still have introduced testimony in his own behalf. The motion, as we have stated, is governed by the same rules that apply to demurrers to the evidence.

“A motion for a declaration of law or for judgment is of the nature of a demurrer to the evidence, and calls only for a declaration of law.” Vincent v. Means, 184 Mo. 342, 82 S. W. 96; First...