Bezemek v. Balduini.

• Decision Date: 20 March 1922
• Docket Number: No. 2527.,2527.
• Parties: BEZEMEKv.BALDUINI.
• Court: New Mexico Supreme Court

28 N.M. 124

207 P. 330

BEZEMEK

v.BALDUINI.

No. 2527.

Supreme Court of New Mexico.

March 20, 1922.Rehearing Denied June 10, 1922.

Syllabus by the Court.

A motion for judgment by the plaintiff at the close of defendant's testimony in a case tried by the court, which, as in this case, calls for a declaration of law from the court, is in the nature of a demurrer to the evidence.

The submission to the trial court of requested findings of fact on the evidence adduced is a waiver under the circumstances of this case of the objection that the court could only pass upon the legal sufficiency of appellant's evidence, and could not pass upon the weight of the evidence, nor make findings of fact.

Questions, points, issues, and matters not jurisdictional, not raised, presented, or passed upon below, are not reviewable on appeal.

The testimony of a witness that defendant's agent had made certain statements subsequent to the transaction, and after the agency had terminated, was properly excluded on the grounds that it was both hearsay testimony and not a part of the res gestæ.

The objection to a question to the defendant who had signed a contract of sale as to whether or not she knew what the contract contained prior to its being read to her is properly sustained when the witness had previously testified to the fact sought to be elicited by the question, and the evidence, if received, would have been merely cumulative.

Requested findings diametrically opposed to those which support the judgment are properly refused.

Appeal from District Court, Bernalillo County; Hickey, Judge.

Action by James Bezemek against Julia Catelani de Balduini. Judgment for the plaintiff, and the defendant appeals. Affirmed.

Requested findings diametrically opposed to those which support the judgment are properly refused.

Simms & Botts, of Albuquerque, and Catron & Catron, of Santa Fé, for appellant.

A. B. McMillen and Lawrence F. Lee, both of Albuquerque, for appellee.

RAYNOLDS, C. J.

This case was brought for the specific performance of a certain contract to sell real estate. The plaintiff relied upon a written contract signed by the defendant and her agent. The defendant pleaded fraud in the procurement of said contract. Upon trial of the issue plaintiff offered in evidence the written contract, and rested. Defendant then placed various witnesses upon the stand to prove the allegations in her answer. At the close of the defendant's evidence the plaintiff moved the court for judgment, which motion was sustained, and judgment entered for the plaintiff, from which the defendant appeals to this court.

[1] Appellant assigns many errors in regard to the exclusion of certain evidence and the refusal of the court to make findings of fact, but relies principally as a ground for reversal upon the action of the trial court in granting plaintiff's motion for judgment at the close of the defendant's case. The motion was as follows:

“Mr. McMillen: Not waiving the right to proceed further if the court should rule against the plaintiff, plaintiff at the close of defendant's evidence moves the court for judgment in favor of the plaintiff for the reason that the defendant has shown no evidence sufficient to break the written contract, or to account for or give an excuse for breaking a contract which she had signed.”

Appellant contends that such a motion was in the nature of a demurrer to the evidence, the reservation therein limiting the court at that time to pass upon the question only as to whether or not the defendant had made a prima facie case. In support of his contention he cites the case of Union Bank v. Mandeville, 25 N. M. 387, 183 Pac. 394.

In our former opinion in this case we held that the above motion was by its terms a motion for judgment, and called for the judgment of the court upon the case at that stage of the proceedings; that the reservation in the motion did not change the nature of the motion for judgment, nor limit its scope. Since handing down the original opinion our attention has been called in the motion for rehearing to the above case, Union Bank v. Mandeville, 25 N. M. 387, 183 Pac. 394, in which it is expressly held that a motion for judgment, although in terms a motion for judgment, when it calls for a declaration of law from the court is a demurrer to the evidence. Appellant urges that the same rule applies in this case; that the execution of the contract in question was admitted; that the defendant pleaded confession and avoidance, as to which the burden of proof was upon her; that at the close of her testimony a motion for judgment such as was made here was no more than a demurrer to the evidence, and the trial court could not weigh the evidence adduced or find the facts. Under the Mandeville Case, supra, we think the position of the appellant is well taken, and that such motion as was here made, althought by its terms one for judgment, was in effect no more than a demurrer to the evidence, asking a ruling from the court in a matter of law as to the sufficiency of the evidence to sustain defendant's plea or defense in confession and avoidance.

[2][3] Appellant, however, cannot avail herself in this court of the erroneous...