Romero v. Herrera

• Decision Date: 22 August 1924
• Docket Number: No. 2796.,2796.
• Citation: 228 P. 604,30 N.M. 139
• Parties: ROMEROv.HERRERA ET AL.
• Court: New Mexico Supreme Court

30 N.M. 139

228 P. 604

ROMERO

v.HERRERA ET AL.

No. 2796.

Supreme Court of New Mexico.

Aug. 22, 1924.

Syllabus by the Court.

Where all parties at the close of a jury trial move the court for a directed verdict, they are deemed to have waived their right to a trial by jury, and to have agreed that the court shall pass upon the facts.

Under such circumstances, findings of fact made by the trial court will not be disturbed on appeal, if they are supported by substantial evidence.

A decision on a prior appeal becomes the law of the case upon a subsequent appeal, and is binding upon the litigants.

The erroneous admission of evidence in a trial before the court without a jury is not reversible error unless it affirmatively appears that the court took such evidence into consideration in deciding the case.

In a case in ejectment where prior possession is the controlling issue, witnesses may not express their opinion as to who had such possession, as that invades the province of the court or jury, as the case may be. They should only testify to facts from which the question may be determined.

Appeal from District Court, Bernalillo County; Hickey, Judge.

Suit by Andres Romero against Felipe Herrera and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Where both parties moved for a directed verdict, the right to have any question of fact submitted to the jury was waived.

N. B. Field and M. J. Helmick, both of Albuquerque, for appellant.

Marron & Wood, of Albuquerque, for appellees.

BRATTON, J.

This is a suit in ejectment instituted by the appellant to recover possession of a described tract of land situated in Bernalillo county 187 yards wide by 1,500 yards long. This is the second time the case has been before this court. The opinion rendered on the former appeal may be found at 27 N. M. 559, 203 Pac. 243. The facts are fully stated there, and it is needless to repeat them here. At the conclusion of the second trial, all parties moved the court for an instructed verdict. The appellant's motion was denied; the appellees' motion was granted; an instructed verdict in their favor was returned, upon which judgment was rendered. The appellant has appealed.

[1] 1. Appellant contends that he affirmatively established a legal title under the following facts proven by him, viz.: That more than 30 years prior to the institution of this suit, Venceslao Chaves fenced the land in question, claiming to own the same; that the trustees of the Atrisco grant failed to take any legal steps to question such action on Chaves' part; that later, and for a valuable consideration, Chaves executed a mortgage upon said land to Pedro Perea, and that, subsequent thereto, Chaves and his wife conveyed the same by deed to Perea; that thereafter Perea conveyed it by deed to the appellant; that this deed was lost, and many years thereafter Perea's heirs executed a substitute or lieu deed conveying the same to appellant, in which the loss of the original was fully recited; that during all of said times, and up to the time appellees dispossessed him, appellant and his predecessors in interest had possession of the land in question. Under these facts, it is contended that he proved a good title in himself. These grounds were incorporated in appellant's motion for a directed verdict. That there was an issue of fact with reference to the kind, character, and duration, as well as the existence of possession by the appellant and his predecessors in interest, is plainly to be seen from the statement of facts appearing in the opinion upon the former appeal, and it is admitted by counsel for both parties in their respective briefs, that the evidence upon this question on the subsequent trial was not materially different from that given on the previous one. This court expressly held, in such former opinion, that an issue of fact was presented with reference to the possession of the land, and that holding is the law of the case upon this appeal, and is binding upon this court, as well as the litigants. Davisson v. Citizens' National Bank, 16 N. M. 689, 120 Pac. 304; McBee v. O'Connell, 19 N. M. 565, 145 Pac. 123; State ex rel. Garcia v. Board of Commissioners, 22 N. M. 562, 166 Pac. 906, 1 A. L. R. 720; First National Bank v. Cavin, 28 N. M. 468, 214 Pac. 325. Possession under this claim of ownership being essential, and there being an issue of fact with reference thereto, the motion of all parties for a directed verdict operated to waive their right to a trial by jury, and to constitute the trial court as the trier of the facts. In other words, the parties are deemed to have waived their right to a jury trial, and are bound by the findings, if supported by substantial evidence. Home Savings Bank v. Woodruff, 14 N. M. 502, 95 Pac. 957; De Burg v. Armenta, 22 N. M. 443, 164 Pac. 838. We follow these cases, which are clearly in harmony with the decided weight of authority throughout American jurisprudence. This may be readily seen by referring to the many cases cited in the note to Manska v. San Benito Land Co., 18 A. L. R. 1430 (1433). So we have this situation--by the law of the case declared on the former appeal, an issue of fact existed with reference to the possession of the disputed land on the part of the appellant and his predecessors in interest. It was clearly essential that he establish this phase of his case in order to recover. Section 3364, Code 1915; Manby v. Voorhees, 27 N. M. 511, 203 Pac. 543; Hoskins v. Talley et al. (N. M.) 220 Pac. 1007. By their motions for a directed verdict, the parties are presumed to have waived their right to have the jury determine the issues of fact, and elected to agree upon the trial judge to pass upon them. The...