Ruhe v. Abren
| Decision Date | 31 January 1857 |
| Citation | 1 N.M. 247 |
| Parties | HENRY RUHEv.SANTIAGO ABREN. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
The testimony of a watchmaker who has repaired a watch and can identify the particular repairs made by him is valuable in replevin for the watch.
*1 APPEAL from the district court of the first judicial district for Santa Fe county. The opinion states the case.
Ashurst and Hopkins, for the appellant.Hugh N. Smith, for the appellee. By Court, BROCCHUS, J.:
This was an action of replevin, by Henry Ruhe against Santiago Abren, for a gold watch and chain. The suit was commenced before a justice of the peace for the county of Santa Fe, and judgment having gone in favor of the defendant, the plaintiff appealed to the district court for the first judicial district, and the case was tried de novo before Chief Justice Deavenport with the same result. The plaintiff moved the court to set aside the verdict of the jury, and grant a new trial on the grounds that new testimony, material on his behalf, had been discovered since the trial, and that the verdict was contrary to the law and the evidence. Motion overruled.
In the trial of this cause, the plaintiff proved by James E. Sabine, that the watch in question was brought by him from St. Louis in the year 1852, and by him sold to D. Berry in the same year, and that he knew the watch by its number, which was recorded in his invoice book. He also proved, by Jules Jeanerett, that a man by the name of Wood afterwards paid the watch in litigation to him, as agent for Charles Spencer, for a debt which he owed the said Spencer; that he knew the watch well by its general appearance, as also from the fact that he had put some teeth in one of the cog-wheels thereof, which he offered to show by taking the watch apart, and that the same watch was put up in a raffle at the Exchange in the city of Santa Fe, about Christmas, in the year 1852, and that the same was won in the raffle by the plaintiff.
He also proved, by Wendell Debus, that he knew the watch in question then shown to him; that he had seen the plaintiff wearing it for some length of time after he had won it at the raffle; that a short time after the plaintiff won it, he tried to persuade him (the plaintiff) to make him (the witness) a present of it, saying that he might get drunk some time or other and lose it, or some one would steal it from him. The plaintiff replied that he would take down the number of the watch, so that in case he should lose it, he could recover it by the number. The plaintiff took from his pocket a memorandum book, and in the presence of him (the witness) put down the number of the watch by the side of the place where the number of his pistol was put down, and that the book shown him at the time of the trial was the book in which the number of the watch was registered, and that the number, 34,547, was the same as put down in the book, and also the number on the watch.
He also proved, by T. Bunker, that he knew the watch in question, and he had seen it in possession of the plaintiff for some time after the raffle; that plaintiff took down the number of the watch and put it in his memorandum-book in his presence, and that the book shown upon the trial was the same book, and the number 34,547, as there put down, was the same as that of the watch in litigation.
*2 Other witnesses were examined on behalf of the plaintiff, the design of whose testimony was to show that the plaintiff lost a watch and chain some time in the year 1853, but their testimony was of such a character as to entitle it to little, if any, importance.
The defendant introduced as a witness Jesus Maria Baca, who testified that he purchased the watch in question from an American, in El Paso, in December, 1852; that he had possession of the watch from that time until shortly before the commencement of this suit, when he gave the watch to defendant, Abren, having won another and finer watch in a raffle, and having promised the said Abren that if he should win it, he would give him the one he then wore, which was the one in controversy. He also testified that Abren was not interested with him in the raffle, and that he had no interest in the result of the suit. He further testified, that on one occasion, while he had the watch, he showed it to Ruhe, the plaintiff, and asked him what it was worth, and Ruhe did not make any claim of it as being his.
The defendant also proved, by Luis Alarid, that on one occasion he was present when Jesus Maria Baca showed the watch in question to Ruhe, the plaintiff, and Ruhe made no claim to the watch as being his.
Upon this testimony the case went to the jury, and they found for the defendant, whereupon the plaintiff moved for a new trial on the grounds of newly discovered evidence and the verdict being contrary to the law and the evidence. The plaintiff in support of his motion for a new trial, on the ground of newly discovered evidence, made an affidavit in which he alleges, that since the trial of the cause he has discovered testimony to show that Jesus Maria Baca, the principal witness for defendant on the trial of said cause, was legally interested in the result of the case tried; that he believes that he can prove by C. D. Scofield, Francisco Ortiz, and Weinheim, that the defendant and the witness Jesus Maria Baca were equally interested in the two watches, the one which was won by the said Baca in the raffle, and the watch sued for. The plaintiff then produced S. Weinheim and Francisco Ortiz, each of whom made affidavit that he heard the defendant Abren say, in the presence of Jesus Maria Baca, that he owned an interest in a watch which had been won by said Baca; that he and said Baca had each paid five dollars for a chance in said raffle; that he the said Abren received the watch sued for as his part of the interest in the watch won by said Baca, and that Baca did not deny the statement made by Abren.
A party, in order to obtain a new trial on the ground of newly discovered evidence, must show that the testimony on which he relies has been discovered since the trial of the cause; that his failure to produce the same on the former trial was not owing to the want of due diligence; and that the newly discovered evidence would probably have produced a different result from that to which the jury came. In one of these prerequisites the showing of the plaintiff is...
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