Rogers v. Richards.

• Decision Date: 18 December 1896
• Citation: 47 P. 719,8 N.M. 658
• Parties: ROGERS et al.v.RICHARDS.
• Court: New Mexico Supreme Court

8 N.M. 658

47 P. 719

ROGERS et al.

v.RICHARDS.

Supreme Court of the Territory of New Mexico.

Dec. 18, 1896.

Error to district court, Santa Fé county; before Justice N. B. Laughlin.

Action by Joseph Richards against W. C. Rogers and others. From a judgment for plaintiff, defendants bring error. Affirmed.

Assignments of error on rulings as to instructions must have been embraced in a motion for new trial, or they cannot be considered on appeal.

C. A. Spiess, for plaintiffs in error.

J. H. Sutherlin, for defendant in error.

COLLIER, J.

This was an action of replevin begun in the district court of Santa Fé county by the defendant in error against the plaintiffs in error, resulting in a verdict for the plaintiff in the trial court being rendered on April 15, 1896. Notice of motion for new trial was given on the same day, but no motion being filed within five days after verdict, as required by rule of court, judgment was entered on the verdict, on motion of plaintiff, and a writ of restitution issued. Afterwards a writ of error was sued out from this court, and said writ of restitution recalled.

The only errors assigned in this court are upon the instructions given by the court of its own motion, and the refusal of the court to give requested instructions. Defendant in error claims that, as to the error assigned upon the instructions which the court gave of its own motion, there is nothing for this court to review, in the absence of a motion for a new trial, and that, as to the requested instructions refused by the court, they can be considered only for the reason that such instructions are made a part of the record proper, and that the instructions were rightly refused. Without giving our assent to the doctrine that refused instructions are record in any different sense from those given by the court of its own motion, we will consider the point raised by counsel as to a motion for new trial being necessary to secure review by this court of alleged errors in instructions.

At this term of this court we have decided that, in order to have this court consider errors in instructions, it is required that exceptions should be taken at the time; the case of Padilla v. Territory (N. M.) 45 Pac. 1120, and Laird v. Upton, Id. 1010, showing such ruling, and these decisions according with the uniform ruling of this court, beginning with the case of Leonardo v. Territory, 1 N. M. 291, of date July, 1859. These ruling embrace as well the case of the judge refusing requested instructions as giving instructions of his own motion. We find it unnecessary to go over this ground again, except to observe that our statute (section 2197) places the giving or refusing of instructions in the same condition, in regard to exception thereto, as any other “decision upon any matter of law arising during the progress of the trial.” The established practice of this court-established both by statute and decision-being that errors in giving or refusing instructions, and errors in deciding matters of law arising upon a trial, stand upon exactly similar footing as to the necessity of exception, we will advert to decided cases in this court as to a motion for new trial being required to obtain a review of errors arising during the progress of a trial. In Spiegelberg v. Mink, 1 N. M. 308, it was held that, to entitle a party to a revision of the facts by this court, a motion for a new trial was necessary. The cases are almost uniform upon the proposition that an appellate court will not consider an assignment of error to the effect that the verdict is against evidence, or is not supported by the evidence, unless there is a motion for new trial, and it is perhaps needless to append a list of authorities sustaining this view. The case of Sierra Co. v. Dona Ana Co., 5 N. M. 190, 21 Pac. 83, followed Spiegelberg v. Mink, supra; but in the same case the majority of the court considered an alleged error of law arising upon the trial, and Brinker, J., concurred in the result upon the broad ground that, there being no motion for a new trial, there was nothing before this court to consider. In Anderson v. Territory, 4 N. M. 108, 13 Pac. 21, it was held that error in the exclusion of evidence must be pointed out in the motion for new trial, or the trial court need not, and the appellate court will not, consider such erroneous decision, though it be admitted that exception was duly taken. If the principle of that decision is sound, it would follow, logically, that, if there is no motion for a new trial at all, no error of law arising upon the exclusion of evidence will be considered in an appellate court. The only reason, having a semblance of plausibility, which would entitle errors in instructions given by the court of its own motion to be reviewed in the absence of a motion for new trial, conceding that errors in the exclusion of evidence are not entitled to such review, may be that instructions are contended to be record proper in the case, while errors in the exclusion of evidence only become record by means of a bill of exceptions. The record proper, in general, consists of the pleadings, process, verdict, and judgment. In Greene Co. v. Wilhite, 35 Mo. App. 43, it is said to include the original process, with the return thereon, the pleadings, order substituting parties, and the entry of final judgment; and in that case it is said that: “There may be difficulty in restricting the record proper, in all cases, to the limits thus stated; but the largest view of what is deemed the record proper can make it include no more, in addition to what is above stated, than those orders which emanate from the breast of the judge while sitting in court, and which are evidenced only by the entries on the minutes of the court.” A definition of “record proper” would seem to be: The pleadings, process, and return thereon; judgments upon pleadings; verdict; judgment; and all orders and rulings which should be entered upon the minutes of the court; but not motions to strike out pleadings, and orders thereon. The definition of a “bill of exceptions” serves also to show what should be considered record proper. “The bill of exceptions is a simple history of the case as tried, and should contain nothing more or less than the facts as they appeared to the court and jury from the commencement of the trial until the final judgment by the court.” Gallaher v. State, 17 Fla. 379. “A bill of exceptions is a formal statement in writing of exceptions taken by a party in the trial to a ruling, decision, charge, or opinion of the trial judge, setting out the proceedings on the trial; the acts of the trial judge alleged to be erroneous; the objections and exceptions thereto, together with the grounds...