Chaves v. Chaves.

• Decision Date: 13 January 1885
• Citation: 3 N.M. 300,5 P. 331
• Parties: CHAVESv.CHAVES.
• Court: New Mexico Supreme Court

3 N.M. 300

5 P. 331

CHAVES

v.CHAVES.

Supreme Court of the Territory of New Mexico.

Filed January 13, 1885.

Appeal from the Second judicial district court, Bernalillo county.

Where an action is brought upon a note, and the defendant pleads the general issue, and a special plea of set-off, to which the plaintiff pleads the statute of limitations, and the defendant introduces evidence of subsequent promises, an instruction that defendant has failed to sustain his plea of set-off, and to find for the plaintiff, is error.

Fisk & Warren, S. M. Barnes, and J. F. Chaves, for appellant.

W. B. Childers, for appellee.

AXTELL, C. J.

Plaintiff brought suit on a promissory note. Defendant pleaded non-assumpsit and set-off. Plaintiff joined issue as to the plea of non-assumpsit, and filed replications to the matters of setoff that said supposed counts of set-off did not accrue within either six or ten years. Defendant introduced proof of subsequent promises, which he claimed took it out of the statute, after the evidence had all gone to the jury. The court, upon the request of the plaintiff, instructed the jury that defendant had failed to sustain his plea of set-off, and directed a verdict for plaintiff. Defendant appealed. We will consider only the second assignment of error, which is that the court erred in instructing the jury to find for the plaintiff. The right of trial by jury, in actions of common law, where the amount in controversy exceeds $20, has been secured to the citizen by the constitution of the United States. The province of the jury, however, is simply to find the facts. It is for the court to determine the legal effect of the facts when found. When it is desirable to take the opinion of the court as to whether the facts proved constitute a legal cause of action, the earlier practice was to demur to the evidence. In this practice, the party demurring admits the truth of all the facts which his opponent claims to have been proved, and everything which the jury could reasonably infer from the evidence is to be considered as admitted, and the judgment of the court is then taken as to whether these facts constitute a cause of action.

In Pleasants v. Fant, 22 Wall. 121, Mr. Justice MILLER says:

“In the case of Parks v. Ross this court held that the practice of granting an instruction to find a verdict had superseded the ancient practice of demurrer to evidence, and should be tested by the same rules. It will not be contended that the modern practice at all enlarges the powers of the court, or in any way abridges the right of trial by jury. It is and must always be true that the jury finds the facts and the court decides the law.”

In the case of Pleasants v. Fant the contention was as to what facts would establish a partnership. Here was a legal conclusion which the court was properly called upon to decide. In a case decided in our own supreme court recently, the question was whether the facts proved constituted such negligence as would render a party liable; and the supreme court sustained the judge at nisi prius, who took the case from the jury, and decided that the facts proved did not constitute culpable negligence. While it is important to confine the jury to their proper sphere, it is equally important that the court should not trench upon that sphere; and it will be found, on careful examination of the reported cases, that judges have only taken upon themselves to decide upon the legal effect of evidence, not upon the credibility of witnesses. In Parks v. Ross the question was whether an agent, who contracts in the name of his principal, is liable to a suit on such contract, and the...