James v. Hood.

• Decision Date: 16 July 1914
• Docket Number: No. 1659.,1659.
• Citation: 19 N.M. 234,142 P. 162
• Parties: JAMESv.HOOD.
• Court: New Mexico Supreme Court

19 N.M. 234

142 P. 162

JAMES

v.HOOD.

No. 1659.

Supreme Court of New Mexico.

July 16, 1914.

Syllabus by the Court.

Neither the verdict of the jury nor the findings of a trial court will be disturbed in the appellate court, when they are supported by any substantial evidence.

The trial court should set the verdict aside and grant a new trial, where it clearly appears that the jury have failed to respond truly to the real merits of the controversy, and justice, has not been done.

Objections not made in the trial court to a question propounded to a witness will not be considered on appeal.

A ruling on the admissibility of evidence, to which no exception has been taken, will not be considered on appeal.

If, when evidence is offered, it is apparently admissible, but subsequently it is shown to be inadmissible on account of reasons not known or stated at the time it was offered, counsel should ask to have it stricken out, and, where no request is made to have such evidence withdrawn from the jury, error cannot be predicated upon its admission.

No alleged errors, unless jurisdictional, will be considered on appeal, except those which are set out in the motion for a new trial.

Error in admitting incompetent evidence of agency is cured by the objecting party's subsequent admission of such agency.

No assignment of error, based upon an exception to the charge of the court to the jury, will be considered, when the exception taken is “to the giving of each and every one of such instructions” for specified reasons, where the alleged vice does not inhere in all of such instructions. It is the duty of counsel to point out specifically the instruction excepted to and the grounds upon which the exception is based.

In order that proper exceptions may be preserved, it is the duty of the trial court to timely submit to counsel copies of the proposed instructions, so that they may intelligently interpose their objections thereto, before the instructions are given.

Appeal from District Court, Union County; Leib, Judge.

Action by Thomas P. James against Boone Hood. From a judgment for defendant, plaintiff appeals. Affirmed.

In order that proper exceptions may be preserved, it is the duty of the trial court to timely submit to counsel, copies of the proposed instructions, so that they may intelligently interpose their objections thereto, before the instructions are given.

O. P. Easterwood, of Clayton, for appellant.

Joseph Gill, of Clayton, for appellee.

ROBERTS, C. J.

Appellant instituted this action to recover from appellee an alleged balance of $1,800, interest and attorney's fees claimed to be due on a promissory note, executed and delivered to him by appellee. Appellee filed an answer, setting up a lack of consideration as to $1,375.43 of the indebtedness represented by the note, and also set up a counterclaim against the appellant for approximately $16,000, made up of various items. One of these items, amounting to $1,172.97, was based upon a claim that appellant had delivered to appellee 6,400 head of sheep on a “partido” contract, together with certain lands, described in the contract only as the Corrumpa Sheep Company Lands, and that appellant, in violation of the contract, had appropriated to his own use a portion of said lands and six lakes of water thereon. The remainder of the counterclaim was based upon 12 or 13 different items, principally growing out of the transaction between the parties under the “partido” contract. The case was tried to a jury, and a verdict for appellee in the sum of $400 was returned. A motion for new trial was filed and overruled, and appellant appealed.

[1] His first two assignments of error are addressed to the sufficiency of the evidence to sustain the verdict. Appellant contends that there is no substantial evidence to support the verdict, and that the record discloses it was returned through prejudice on the part of the jury. There was a sharp conflict in the evidence, and, from the record before us, it seemingly preponderated in appellant's favor. However, under the well-established rule, neither the verdict of the jury nor the findings of a trial court will be disturbed in the appellate court, when they are supported by any substantial evidence. Goldenberg v. Law, 17 N. M. 546, 131 Pac. 499. We cannot weigh conflicting evidence, and will only examine it for the purpose of determining whether there was substantial evidence, which if believed by the jury warranted the verdict. In this court we have only the written transcript of the evidence before us, and therefore do not have the advantage nor opportunity of seeing the witnesses, hearing them testify, observing their manner and demeanor on the witness stand, and the many other indescribable aids in sifting out truth from falsehood, possessed by the jury and the trial judge. Here the verdict not only has the approval of the jury, but the trial court has, after carefully considering all the evidence, with every opportunity which the jury had, of determining its weight and credence, giving its approval to the same.

[2] The weight of the evidence may properly be considered by the trial judge in passing on the motion for a new trial, where it is properly called to his attention, and if his judgment tells him that the verdict is wrong, that the jury have erred, either through mistake, prejudice, or other cause, and have found against the fair preponderance of the evidence, he should not hesitate to set it aside and remand the question to another jury. The trial judge is more than a mere moderator, passing upon the admissibility of evidence, and instructing the jury as to the law of the case. He, as well as the jury, must approve of the verdict. The object of trials in the courts is to mete out justice to litigants, and, unless substantial justice is meted out by the verdict of the jury, the judge should not permit the verdict to stand. We do not mean to say that he should substitute his judgment for the judgment of the jury, and, in all cases where he might have reached a different conclusion upon the evidence, that he should grant a new trial; but where it clearly appears that the jury have failed to respond truly to the real merits of the controversy, and justice has not been done, he should unhesitatingly set the verdict aside. This has always been the guide, for trial judges, both in this country and England. In an early English case (Bright v. Eynon, 1 Burr, 390, 97 Eng. Reprint, 365) Lord Mansfield discussed the question as to when a new trial should be granted on the weight of the evidence, and says:

“And the rule laid down by Lord Parker, in the case of the Queen against the Corporation of Holston, H. 12 Ann. B. R., seems to be the best general rule that can be laid down upon this subject, viz., ‘doing justice to the party,’ or, in other words, ‘attaining the justice of the case.’ ”

See, also, the case of Wood v. Gunston, Style, 446, a case decided in 1655.

In the case of Kansas Pacific R. Co. v. Kunkle, 17 Kan. 172, Justice Brewer, speaking of the functions of the trial court, as distinguished from the court of last resort, said:

“The functions of the two are widely dissimilar. The one has the same opportunity as the jury for forming a just estimate of the credence to be placed in the various witnesses, and, if it appears to him that the jury have found against the weight of the evidence, it is his imperative duty to set the verdict aside. * * * We do not mean that he is to substitute his own judgment in all cases for the judgment of the jury, for it is their province to settle questions of fact; and when...