Laird v. Upton

• Decision Date: 21 August 1896
• Citation: 45 P. 1010,8 N.M. 409,1897 -NMSC- 012
• Parties: LAIRD, Sheriff, v. UPTON et al.
• Court: New Mexico Supreme Court

45 P. 1010

8 N.M. 409, 1897 -NMSC- 012

LAIRD, Sheriff, v. UPTON et al.

Supreme Court of New Mexico

August 21, 1896

Error to district court, Grant county; before Justice H. B Hamilton.

Replevin by Elizabeth C. Upton and husband against Andrew B. Laird sheriff. Judgment for plaintiffs. Defendant brings error. Affirmed.

W. B Clilders, for plaintiff in error.

James S. Fielder, for defendants in error.

COLLIER J.

This is an action in replevin, begun in the district court of Grant county by Elizabeth C. Upton and her husband, James N. Upton joining with her, against Andrew B. Laird, sheriff of the county of Grant, to recover 751 head of goats, which had been levied upon by said sheriff by virtue of an execution issued on a judgment recovered in said court against said James N. Upton, the goats being levied upon as his property. The replevin suit was begun in August, 1894, and filed with the declaration in the cause was the affidavit required by our statue; but the record fails to show that any bond was filed in the office of the clerk of said court, either prior or subsequent to the issuance of the writ, which bears date August 8, 1894, and was returnable to the November, 1894, term of said court. The oath of the special officer appointed to serve said writ was filed on the day following the issuance of said writ. On the 10th day of the said term the defendant filed a plea of general issue; and a year later, at the November, 1895, term of said court, there was filed a motion to dismiss said cause for want of proper service and return. The record does not show what disposition was made of said motion, but eight days later an affidavit of James N. Upton was filed in the cause, to the effect that a replevin bond was executed "prior to the issuance and levy of the writ," and that the bond "was accepted by the officer who levied the writ"; and on the next day a bond to take the place of the one so alleged to have been given was "approved, as to form and sufficiency of sureties," by the clerk, and filed in his office. The cause then proceeded to trial, resulting in a verdict as follows: "We, the jury, find verdict for the plaintiff, and assess the damages at $500." There was a motion at the close of plaintiff's evidence for "the court to instruct the jury to return a verdict for the defendant"; and being overruled, and the overruling excepted to, evidence in defense and in rebuttal was gone into. On the 29th day of November, 1895, motion in arrest of judgment was made, upon the grounds that there was not proper and sufficient service of the writ, and that plaintiff, being a married woman, had not joined her husband in the action; and a motion for a new trial, also, upon the grounds that the verdict is contrary to law and the evidence, and for error in overruling defendant's motion to direct a verdict. These motions were each overruled. The bill of exceptions fails to show an exception to the instructions of the court, or to the overruling of the motions in arrest of judgment and for a new trial.

It is abundantly established by authority that appellate courts unless there are statutory provisions securing review without exception duly taken, will not consider errors committed in the trial of cases at law which were not excepted to in the trial court. This court, it has recently been held by the supreme court of the United States, in the case of Grayson v. Lynch (decided May 26, 1896) 16 S.Ct. 1064, has no statutory provisions which take it out of the rule of being, upon a writ of error, "limited to the bill of exceptions or questions of law otherwise presented by the record." In Grayson v. Lynch, supra, it is stated that "there is clearly nothing in these [our] statutes which lays down a different rule from that ordinarily pursued in appellate courts," and that "only such rulings of the court in the progress of the trial can be reversed as are presented by a bill of exceptions." This conclusion was arrived at by a construction of our statutes as they existed prior to section 4 of the act of 1889, entitled "An act with reference to practice in the supreme court and for other purposes," and as to this section the court, in Grayson v. Lynch, supra, say: "It is difficult to perceive wherein this statute makes any essential change in the previous practice. *** It certainly does not, in terms, require that the court shall rehear the case upon the testimony, as if it were an appeal in equity, but limits its powers of review to such questions as are apparent upon the record, or incorporated in the bill of exceptions." As to what a bill of exceptions may properly contain, our statute prescribes in section 2197, Comp. Laws, which reads as follows (section 2197): "Exceptions to the decision of the court upon any matter of law arising during the...