Romero v. McIntosh

• Decision Date: 17 December 1914
• Docket Number: 1656.
• Parties: ROMERO v. MCINTOSH.
• Court: New Mexico Supreme Court

145 P. 254

19 N.M. 612, 1914 -NMSC- 094

ROMERO
v.
MCINTOSH.

No. 1656.

Supreme Court of New Mexico

December 17, 1914

Syllabus by the Court.

Under section 1, c. 57, Laws of 1907, providing that any person aggrieved by any final judgment or decision of any district court in any civil cause may, at his election, take an appeal or sue out a writ of error within one year from the date of the entry of the same, and where a motion for a new trial or rehearing is seasonably made, the time within which the appeal may be taken or the writ of error sued out is to be computed from the date of the denial of the motion, and not from the date of the rendition or entry of the judgment or decree, where the motion was authorized by statutory provision and operated as a stay of execution, because until such motion was disposed of the judgment was not "final judgment" within the meaning of the statute.

In an action for trespass by cutting and removing timber from lands of the plaintiff, the proof that some of it was cut by defendant was insufficient to charge him with responsibility for all the timber missing from plaintiff's land during an indefinite period of two or three years.

Error to District Court, Bernalillo County; H. F. Raynolds, Judge.

Action by William McIntosh against Eugenio Romero. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

In this cause defendant in error, William McIntosh, commenced an action against the plaintiff in error, Eugenio Romero, on account of alleged trespass committed by Eugenio Romero in unlawfully having cut timber from the lands of defendant in error, McIntosh. It appears from the record herein that, prior to the commencement of this action, the same defendant in error, William McIntosh, commenced and prosecuted to final determination an action against this same plaintiff in error, Eugenio Romero, and others, whereby he alleged that Eugenio Romero and the others were unlawfully cutting timber from his lands and prayed that the said Eugenio Romero and the other defendants in that action be permanently enjoined from the further cutting of timber upon his lands and for other relief. The plaintiff in error, Eugenio Romero, by his answer to the complaint in this action pleaded the judgment rendered in the first action between him and McIntosh as being res adjudicata of the cause of action in this suit. The defendant in error, McIntosh, demurred to this defense, and, the court having sustained the demurrer, plaintiff in error herein duly filed his exceptions to the ruling of the court sustaining the demurrer and filed an amended answer herein, and upon the issue thus joined this cause was tried by the court without a jury; the jury having been by both parties waived. The court rendered judgment against the plaintiff in error herein for the sum of $6,492, with interest at the rate of 6 per cent. per annum from July 18, 1906, to the date of judgment.

S. B. Davis, Jr., and C. A. Spiess, both of East Las Vegas, for plaintiff in error.

E. W. Dobson and E. A. Mann, both of Albuquerque, for defendant in error.

HANNA, J. (after stating the facts as above).

Several assignments of error are presented for consideration, but we must first consider a motion for the dismissal of the writ of error upon the ground that the writ was not sued out within one year from the date when the judgment in the lower court became final.

The court rendered its judgment on...