Birchfield v. Birchfield.

• Decision Date: 17 July 1923
• Docket Number: No. 2721.,2721.
• Citation: 29 N.M. 19,217 P. 616
• Parties: BIRCHFIELDv.BIRCHFIELD.
• Court: New Mexico Supreme Court

29 N.M. 19

217 P. 616

BIRCHFIELD

v.BIRCHFIELD.

No. 2721.

Supreme Court of New Mexico.

July 17, 1923.

Syllabus by the Court.

An action or ruling of the trial court, which is not referred to, nor set forth in any manner in the assignments of error, cannot be reviewed by this court.

In an action for alienating the love and affection of plaintiff's husband, the burden is upon plaintiff to establish the existence of such love and affection, and that the defendant maliciously caused the alienation thereof.

In such an action against a father-in-law, a greater degree of proof is required to show that such parent acted maliciously than would be required in a case against an intermeddling stranger, as the motive of such parent is presumed to be good, and to flow from a natural parental affection for the welfare and happiness of the child.

Evidence reviewed, and held not to establish any interference on the part of the parent, nor that he acted with malice.

Additional Syllabus by Editorial Staff.

The word “malice” as used in the rule requiring proof of malice in actions for alienation of affections does not mean that which proceeds from a mean, hateful, or revengeful disposition, but may imply conduct from an ill-regulated mind not sufficiently cautious before it occasions the injury.

Appeal from District Court, Luna County; Ryan, Judge.

Action by Vena Birchfield against W. P. Birchfield. Judgment for defendant, and plaintiff appeals. Affirmed.

Evidence reviewed, and held not to establish any interference on the part of the parent, nor that he acted with malice.

A. M. Edwards, of Santa Fé, for appellant.

A. W. Pollard, of Deming, and Renehan & Gilbert, of Santa Fé, for appellee.

BRATTON, J.

This is a suit instituted by the appellant, Vena Birchfield, against her father-in-law, W. P. Birchfield, by which she sought to recover damages in the sum of $50,000 for wrongful, unlawful, and malicious alienation of the love and affection of her husband, Steve Birchfield, who is the son of the appellee. At the close of the plaintiff's case, the trial court directed a verdict for the defendant.

[1] It is first contended by the appellant that the trial court erred in striking from the record and withdrawing from the consideration of the jury all the testimony given by the plaintiff concerning statements made to her by her husband. This action on the part of the trial court is nowhere assigned as error. There are only two assignments of error, each and both of which relate to the correctness of the action of the trial court in directing a verdict against her. Neither of them mention, relate to, nor concern, either directly or indirectly, the withdrawal of such evidence from the consideration of the jury. Section 22, c. 43, Laws 1917, expressly requires assignments of error to be filed in this court in all civil cases, that they be copied upon a separate paper, and that each error relied upon shall be stated in a separate paragraph. The relevant portion of this section reads:

“On appeals and writs of error, the appellant and plaintiff in error shall assign errors and serve a copy of such assignment of error on the opposite party in the same manner that copies of pleadings are served, and file a copy with the clerk of the Supreme Court on or before the return day to which the cause is returnable, which said assignment of errors shall be written on a separate paper and filed in the cause, and shall also be copied into the brief of the appellant or plaintiff in error, and each error relied upon shall be stated in a separate paragraph. In default of such assignment of error and filing the same the appeal or writ of error may be dismissed and the judgment, order, decision or conviction, as the case may be, affirmed, unless good cause for failure be shown. Unless exception is filed or taken to the assignment of error the opposite party shall be deemed to have joined in error, upon the assignment of error so filed.”

In some states the necessity of filing assignments of error has been dispensed with by statute, but not so in this state. They are expressly required in all civil cases. Their form is not prescribed further than that each error relied upon shall be stated in a separate paragraph.

In legal contemplation, the assignments of error so required are designed to bring together and set forth in an orderly manner the errors which are charged to have been committed, and which are relied upon to obtain a reversal of the case. In this sense they perform the function of a complaint. Manifestly, therefore, an action or ruling of the trial court, which is not referred to, nor set forth in any manner in the assignments of error, cannot be reviewed. This is not a question of the form or sufficiency of the assignments of error, but rather the nonexistence thereof. So far as the error appellant now complains of is concerned, the situation is the same as if no assignments had been filed. Under the rule of decision in this state we cannot review the subject. In Re Murray, Receiver, 19 N. M. 53, 140 Pac. 1042, this court said:

“From the above it will be seen that the statute contemplates that assignments of error shall be filed in all civil cases taken to the Supreme Court by appeal, or in which a writ of error may have been sued out. The assignment of error is, in legal contemplation, the complaint of the appellant or plaintiff in error. In it he sets forth the errors committed by the trial court, which he seeks to have reviewed by the appellate court. In a sense, it performs the same office as does a complaint filed in the trial court. Without a complaint the jurisdiction of the trial court cannot be invoked. In the absence of an assignment of errors, where the same is required by statute or rule of court, no relief is asked of the appellate court, and it will not enter upon a consideration of the case.”

The only remaining question is whether there was any evidence produced by the plaintiff which formed an issue to be submitted to the jury. If such existed, the court erred in directing a verdict. The appellant was the only witness who testified. At the close of her testimony she rested her case, and the directed verdict followed. She testified to being in appellee's home in Deming on several different occasions, and was well and kindly treated by appellee and his entire family, except when she suffered a spell of sickness, during which she was neglected; that appellee expressed himself as being pleased with her marriage to her husband, who is referred to throughout as Steve, and further said that he thought Steve had overdone himself in his marriage to her. He suggested that she raise all the money she could, and he would loan Steve a like amount, with which they could embark in the cattle business, he taking a mortgage on the...