Henry v. Lincoln Lucky & Lee Min. Co.
| Decision Date | 02 March 1906 |
| Citation | 85 P. 1043,13 N.M. 384,1906 -NMSC- 012 |
| Parties | HENRY v. LINCOLN LUCKY & LEE MINING CO. et al. |
| Court | New Mexico Supreme Court |
Error to District Court, Santa Fé County; before Justice John R McFie.
Action by Alexander M. Henry against the Lincoln Lucky & Lee Mining Company and others. From a judgment in favor of defendants plaintiff brings error. Motion to strike a motion for a new trial and the bill of exceptions from the record. Motion denied.
W. B Childers and N. B. Laughlin, for plaintiff in error.
E. A Fiske, for defendants in error.
There can be no doubt that a motion for a new trial must be filed during the term at which the verdict is rendered and within five days after verdict, that unless so filed it may be stricken from the files as a nullity, and that, unless a motion for a new trial is filed in a case tried by a jury, no question, properly to be presented to the lower court thereby, can be reviewed here. But in this case, although it seems probable that it was the intention of the judge to adjourn the term of court, that intention, perhaps by inadvertence, was not, we think, embodied in the record. The language of the adjournment is: "It is ordered that the court do now adjourn until court in course." That order was in the form in ordinary use in some of the districts of the territory when the courts were in session only during the terms established by statute; But, since the law was so changed by section 103 of the Code that the courts are to be always in session except for jury trials, it would seem to be necessary that the "term," which it still recognized as existing for many purposes, should be particularly mentioned, or, at least, definitely indicated, in the adjournment order, and that, in the absence of such mention or specific reference, it must be held that the court and not the term was adjourned. As we have said, it is highly probable that it was the intention of the court to adjourn the term, but we cannot read into the record what it does not contain, and it, we think, does not show that the term had ended when the motion for a new trial was made, and, as it was filed within five days after verdict, it was in time. The subsequent termination of the term by operation of law without action thereon by the court resulted, under the statute, in its being overruled.
For the reasons stated, the motion to strike the motion for a new trial and the bill of...
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