Goldenberg v. Law.D1

Citation17 N.M. 546,131 P. 499
PartiesGOLDENBERGv.LAW.d1
Decision Date24 March 1913
CourtSupreme Court of New Mexico

OPINION TEXT STARTS HERE

Syllabus by the Court.

The verdict of the jury will not be disturbed in this court where it is supported by any substantial evidence.

Where a party claims that the lower court permitted a witness, over objection, to answer an improper question, he must point out wherein his rights have been prejudiced thereby. The Supreme Court will disregard errors committed by the lower court, not prejudicial to the substantial rights of a party.

Where a party claims to be aggrieved by a claimed erroneous instruction, it is his duty to clearly point out his objection to such instruction.

A party may contract to render legal services for a party, after he has been admitted to practice, and, in an action to recover for the value of such services, the test as to his right to recover is, was he admitted to practice at the time of the rendition of such services, and not whether he was so licensed at the time of the making of the contract for future services.

Where the trial court fails to mark on the margin of an instruction the words “given” or “refused,” as required by statute, it is the duty of a party, desiring to have the question reviewed as to such failure, to interpose objection and save exceptions to such failure, and, failing so to do, such alleged error will not be considered by the appellate court.

Where the trial court inadvertently handed to the jury, at the conclusion of the giving of the instructions, two instructions requested by plaintiff, but which the court refused to give, and so indicated on the margin thereof, and the jurors took such refused instructions with them to their jury room, but it appears that appellant's attorney was present in the courtroom at the time, and knew that the judge had handed such refused instruction to the jury, and failed to call the matter to the attention of the court, or to object or except thereto, the alleged error will not be considered by this court.

It has been settled upon sound consideration of public policy that the testimony of jurors is inadmissible in support of a motion to set aside a verdict on the ground of misconduct of the jury.

Appeal from District Court, Union County; T. D. Lieb, Judge.

Action by Charles A. Law against Alexander D. Goldenberg. From judgment for plaintiff, defendant appeals. Affirmed.

It has been settled upon sound consideration of public policy that the testimony of jurors is inadmissible in support of a motion to set aside a verdict on the ground of misconduct of the jury.

O. P. Easterwood, of Clayton, and Henry Swan, of Tucumcari, for appellant.

W. J. Lucas, of East Las Vegas, and John A. Pace, of Clayton, for appellee.

ROBERTS, C. J.

Appellee instituted this action in assumpsit, in the court below, to recover the alleged value of services rendered as an attorney at law, in the sum of $1,500. The cause being at issue was submitted to a jury, which returned a verdict in appellee's favor, and fixed his damages at $750. A motion for a new trial was filed and overruled, and the judgment was entered upon the verdict. From the judgment and the action of the court, in overruling the motion for a new trial, this appeal is prosecuted. Thirty-two alleged errors were assigned to the proceedings which led up to the judgment, eleven of which are not discussed by appellant and will therefore not be considered. The remaining assignments will be considered in the order presented.

[1] Assignments two, three, and four allege error in that the verdict was against the law, was excessive, and was not supported or justified by the evidence. Appellant argues that there is not sufficient evidence in the record to sustain the verdict. The testimony of the appellee, however, shows that he was employed by appellant to represent him in procuring title from the United States government for 80 acres of land within the limits of the town of Tucumcari, or at least immediately adjoining said town. A portion of the land had been platted into town lots and sold to various parties by appellant. It appears that appellant had located scrip upon the land, which location had afterwards been vacated by order of the commissioner of the General Land Office and a homestead entry had been made upon the land. Appellee was employed to procure the cancellation of the homestead entry and the reinstatement of the scrip location, and was successful, and appellant finally secured patent to the land. Appellee testified that no definite arrangement had been made as to his compensation; that appellant paid him a retainer of fifty dollars and told him that if he succeeded in procuring a patent to the land he would be rewarded “handsomely for his services.” There was ample evidence submitted as to the rendition of the services and the value thereof, which, if believed by the jury, fully justified the verdict. This court cannot undertake to weigh the evidence on appeal. Our only concern is as to whether the verdict is supported by substantial evidence. The rule was stated succinctly by Mr. Justice Parker, for the territorial Supreme Court, in the case of Candelaria v. Miera, 13 N. M. 362, 84 Pac. 1021, as follows: “Ordinarily, neither the verdict of a jury nor the findings of fact of a trial court will be disturbed in this court when they are supported by substantial evidence.” There being substantial evidence, supporting the verdict of the jury, it will not be disturbed by this court.

[2] It is next urged that the court erred in permitting appellee, over objections, to answer the following question: “Was the land covered by the homestead entry of Dr. Tomlinson and the scrip selection of Mr. Goldenberg of the same character as to value and location as the original homestead entry in the land office?” The claim is made that there is no evidence to show that the witness was acquainted with the values of property, or that he had any information concerning this land or lands of like character in this vicinity. Admitting that the question was improper, appellant has failed to point out wherein he was prejudiced thereby. It is elementary that this court will disregard any error not prejudicial to the substantial rights of a party, and the burden of showing such prejudices rests upon the party asserting it. The court permitted, over objection, the following question to be propounded to E. W. Fox, registrar of the Clayton Land Office, viz., “In general, what did Mr. Law do as attorney for Mr. Goldenberg?” To which the witness answered: He represented Mr. Goldenberg and Mr. Lowe in the reinstatement of this case.” Appellant claims that the court violated the rule which requires that the truth shall be established by the best evidence in permitting the above and similar questions to go to the jury. He insists that the facts should have been established by the records of the land offices. There is no merit in this contention and it need not be further considered.

Appellants claim that the court erred in permitting the witness Fox to testify as to the skill, knowledge, and experience required of an attorney to handle litigation in the United States Land Office, because such witness was not qualified to give such an opinion. It is sufficient answer to this contention to say that no such ground of objection was interposed in the court below. “Where evidence is objected to at the trial, if the party would save an exception to the ruling of the court if it is adverse to him, such as will be available on appeal or error, he must frame his objection so as to bring to the attention of the trial court the specific ground upon which he predicates it.” Thompson on Trials (2d Ed.) § 693. And it has been held that an objection that evidence is “irrelevant, immaterial, and improper” will not be sufficient to raise the question of the competency of the witness, even where he is clearly incompetent, by express statute. Cornell v. Barnes, 26 Wis. 473; Hammond v. Decker, 46 Tex. Civ. App. 232, 102 S. W. 453.

Appellant next complains that the court erred in permitting appellee to propound certain hypothetical questions to certain witnesses, which questions he claims materially exaggerated the services rendered by appellee. We have carefully read the evidence and are of the opinion that the hypothetical question submitted did not materially exaggerate such services, and therefore need not further consider this objection.

[3] Appellant also assigns as error the giving by the court of its own motion of instruction No. 5, but h...

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44 cases
  • Acosta v. Shell W. Exploration & Prod., Inc.
    • United States
    • Court of Appeals of New Mexico
    • December 26, 2012
    ...has long adhered to the rule that juror testimony is inadmissible when offered to impeach the jury's verdict. See Goldenberg v. Law, 17 N.M. 546, 556–57, 131 P. 499, 502 (1913); see also Skeet v. Wilson, 76 N.M. 697, 699, 417 P.2d 889, 890 (1966) (“New Mexico has long been aligned with thos......
  • State v. Nevares.
    • United States
    • New Mexico Supreme Court
    • January 27, 1932
    ...tests as to his sanity. The proposition that a juror may not thus impugn his verdict is firmly established in this state. Goldenberg v. Law, 17 N. M. 546, 131 P. 499; Talley v. Greear, 34 N. M. 26, 275 P. 378; State v. Taylor, 26 N. M. 429, 194 P. 368; State v. Analla, 34 N. M. 22, 276 P. 2......
  • Skeet v. Wilson
    • United States
    • New Mexico Supreme Court
    • September 6, 1966
    ...the right to a new trial based alone on affidavits or statements of jurors presented after the jury has been discharged. In Goldenberg v. Law, 17 N.M. 546, 131 P. 499, the conflict in the decisions was considered and it was concluded that, although the conduct there complained about was suf......
  • Garcia v. Sanchez
    • United States
    • New Mexico Supreme Court
    • June 12, 1961
    ...Lujan, said: 'The rule is established in this jurisdiction that a verdict cannot be impeached by the affidavits of jurors. Goldenberg v. Law, 17 N.M. 546, 131 P. 499. It has been followed in Murray v. Belmore, 21 N.M. 313, 154 P. 705; State v. Taylor, 26 N.M. 429, 194 P. 368; State v. Anall......
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