Torlina v. Trorlicht
| Citation | 27 P. 794,6 N.M. 54,1891 -NMSC- 019 |
| Parties | TORLINA v. TRORLICHT et al. |
| Decision Date | 25 July 1891 |
| Court | New Mexico Supreme Court |
On rehearing. Modified and affirmed. For prior case see 21 P 68.
The petition for rehearing was chiefly based on the following letter from the defendants: And also on the testimony of the defendant in error Trorlicht, on cross-examination, as follows:
The plaintiff in error on the 2d day of March, 1889, filed in this court his petition for rehearing, supported by forcible and able argument. The questions discussed are those considered by the court in the opinion heretofore rendered. The defendants in error in their brief originally filed presented two points for consideration. The first was, where a question of fact had been submitted to the court and passed upon without a jury, the appellate court could not review the rulings of the court below thereon. The court held adversely to the proposition, as it was urged by the defendants, and fully considered all the questions of error presented by the plaintiff. This question has since been before this court and it was held that, under the statutes of the territory as they then existed, authorizing the waiving of a jury and trial by the court, the general verdict of the court might be reviewed, the same as a general verdict of a jury. Therefore nothing would be considered in the case except such rulings of the court, during the progress of the trial, as have been duly excepted to and brought before the appellate court by a bill of exceptions. Lynch v. Grayson, (N. M.) 25 P. 992. But as the judgment of the court below, as well as the opinion of this court sustaining the same, in effect is in harmony with the views as expressed in the case referred to, we will not further consider the point than as it may have the effect to limit our consideration to the exact questions decided by the court, below, and which have been properly brought up for our determination. As before held, "the weight of evidence and the inferences of fact must be drawn by the court below, as it was the judge of that court, and not the supreme court, that was substituted by agreement of the parties in the stead of the jury." Insurance Co. v. Folsom, 18 Wall. 237.
The second point made in the brief of defendants in error is thus stated by them: It is too well settled to need citation of authorities that, if the court below fully and fairly declares the law applicable, to the whole case and the several parts thereof, the court of last resort will not reverse the cause for any alleged error in refusing other instructions asked on the other trial, but not given. In this case the instructions given, or rather declared the law as applicable to the issue and evidence. Two questions reasonably arose in the trial court upon the evidence: First, were the defendants about fraudulently to dispose of their property at the time the writ of attachment issued, so as to defraud their creditors? Secondly, were they about to dispose of their property subject to execution, so as to hinder and delay their creditors, in such manner as that such hindering and delaying would amount to fraud in law, without reference to the actual intent present in the minds of the defendants at the time of the transaction? The law, as held by the court below, is in favor of the plaintiff on the first point. As to the second one, the trial court, in the third and fourth declarations, held that an assignment for the purpose of delaying creditors 12 months, or indefinitely, until business improved, or until such time as the property should so advance in value as to pay all the debts of the debtor, would be an unreasonable delay, and therefore fraudulent. The law, as held by the trial court, and applied to the evidence, was in favor of the plaintiff, both as to the question of actual fraudulent intent and such unreasonable postponement of payment as to constitute fraud in law, following on those question the law of the case as contended for by the plaintiff below. On these two points that court, however evidently held the evidence not to prove either actual fraudulent intent, or such unreasonable delay as to amount to fraud in law; otherwise the court would have found for plaintiff on that branch of the issue. The finding of the court on the weight of evidence is discussed at some length in the former opinion, but the action of the court below for an alleged error as to the conclusions to be drawn from the evidence is not reversible here, if there is any substantial evidence in support of the finding of the court below. The inquiry before this court is whether the trial court erred in its refusal to give the instructions, or to declare the law to be asked by the plaintiff. If the court below had found the evidence to have proven that the defendants intended to make such an assignment of their property as to delay their creditors in the collection of their debts 12 months, or so as to create an unreasonable delay, it would certainly have found for the plaintiff, under the view of the law declared by that court in the points held or the instructions given. If, however, the court found that the evidence proved an intention on the part of the defendants, before the writ of attachment issued, to make an assignment of their property, which would create but slight delay, and also held that such an assignment was not fraudulent in law, such finding would have been, as it was for the defendants, because the law, as declared by the trial court upon such a state of facts, would be with the defendants. The record is silent, except as the same may be inferred, as to the actual views entertained by the trial judge at the trial, as it only shows on that question that the case was tried at the special September term; taken under advisement; and on the 14th day of October, 1886, a general finding for the defendants entered; so we are unable to determine, even if the question were important, whether the ruling here is placed on the same ground as that upon which the cause was determined below. It seems to us unimportant as to the ground on which the trial court predicated its action, as the question here is, does there exist reversible error in the record? If the defendants in error had rested their cause here upon the single point that the court could not review the proceedings below, even then, if the court deemed that contention not well taken, it would not be justified in reversing the cause, unless some error was found in the record, and would be bound, before reversing, to examine the whole record to determine whether reversible error was apparent. Certainly this court could not reverse the cause merely because it deemed its powers of review to be greater than defendants argued in one point of their brief. Nor could the court reverse the cause if in its judgment the court below decided right, even though this court should be of opinion that the decision below was placed on wrong grounds. In the opinion originally announced, the instructions refused are set out. A consideration of the instructions given will throw some light upon the point in the mind of the trial court at the time of its refusal to give the instructions about which complaint is now made. It is evident by the instructions declared that the court below on the trial of the cause had in mind the question considered in the opinion in this cause, which we are now asked to withdraw or modify. The court below refused to declare the law as stated in the second, fifth, and sixth propositions asked, but held the law to be as stated in the third, fourth, and seventh propositions. These various propositions are here treated as instructions asked, as the cause was tried without the intervention of a jury, and asking the court to declare the law was equivalent to asking an instruction. The points of law given or declared, and held on the trial to be applicable to the evidence asked for by the plaintiff, are as follows: ...
To continue reading
Request your trial