Lacey v. Woodward

• Decision Date: 31 January 1891
• Citation: 25 P. 785,5 N.M. 583
• Parties: LACEYv.WOODWARD et al.
• Court: New Mexico Supreme Court

5 N.M. 583

25 P. 785

LACEY

v.WOODWARD et al.

Supreme Court of the Territory of New Mexico.

Jan. Term, 1891.

Appeal from district court, Sierra county.

It is discretionary with the trial court to permit a witness for plaintiff to be recalled, even after the close of defendant's case, and asked a question which had been overlooked on the direct examination.

Elliott & Pickett, for appellants.

John J. Bell, for appellee.

LEE, J.

This is an action of ejectment, brought originally by plaintiff against the defendants in the district court of Grant county, to recover the possession of the “Star of the West” mine, and damages for the unlawful detention of the same. The venue was afterwards changed to the district court of Sierra county, where, at the November term, 1889, a jury trial was had, which resulted in a verdict of guilty against defendants, and plaintiff's damages were assessed at $500. A motion for a new trial, made by the defendants, was overruled by the court, and judgment entered in accordance with the verdict, from which judgment the defendants took an appeal to this court.

The first error assigned, and perhaps the principal one in the case, arises upon the following question, asked plaintiff by his counsel, he having been introduced as a witness in his own behalf: “State, Mr. Lacey, to the jury, what you regard as the damages you have suffered in consequence of these defendants taking from you the possession of that mine on the 5th day of November, 1888.” The question was objected to for the reason that it called for the opinion of the witness as to the damages he might have sustained. The question was clearly open to the objection made, as well as to others that might be suggested. But whether the ruling of the court in admitting it constitutes error in the case must be taken into consideration with other rulings of the court upon the same question. In answering it the witness said: “Five thousand dollars. I base it on the fact of having a contract of at least two car-loads per day, with the understanding that it could be increased right along to three or four car-loads. In a short time after, I commenced shipping iron, and putting it down at the lowest figure, at fifty cents a ton, for the royalty, you, gentlemen, can figure the thing for yourselves for eleven months, even at two car-loads per day.” The counsel for the defendants asked that this testimony be stricken out, as being entirely too remote. The court ruled upon this motion as follows: “I will have to instruct this jury upon the measure of damages. I will not pass finally upon this question now. I will reserve my opinion until a future stage of the case.” This witness was recalled later in the case, and was asked practically the same question, as follows: “Mr. Lacey, state to the jury whether or not you have sustained any damages in consequence of the defendants taking possession of this mining property, and, if so, state the nature of the damages, in what manner you were damaged or injured, and the extent of the injury, commencing from the time of the commencement of this suit, up to the present month.” This question was objected to for the reason that the rule, as fixed by statute, reads, “rents and profits of such premises,” etc. At this time the court ruled as follows: “I think our statute controls on the subject, and it seems to direct what can be recovered. The question of what is embraced in the name of ‘rents and profits' is a matter upon which you may give testimony, but I think we have to be governed by the statute in regard to assessing damages.” The question was finally asked by the counsel for plaintiff in the following form: “Mr. Lacey, state to the jury what would be the reasonable value of the rents and profits, if any, of the ‘Star of the West’ mine now in controversy, from the time you commenced this action to the present time.” To this question there was no objection, and, the ruling having finally been in favor of the appellants, and correct in point of law, it leaves the defendant nothing to complain of in this assignment of error.

The fourth error assigned is as follows: “John F. Lacey, the plaintiff, called in rebuttal after the defendants had introduced all their testimony, and closed their case in chief, was asked: ‘Mr. Lacey, are you a citizen of the United States, and, if so, how long have you been a citizen?”’-to the admission of which defendants excepted. The record shows that the...