Western Coll. of N.M. v. Turknett.

• Decision Date: 13 August 1912
• Citation: 17 N.M. 275,125 P. 1085
• Parties: WESTERN COLLEGE OF NEW MEXICOv.TURKNETT.
• Court: New Mexico Supreme Court

17 N.M. 275

125 P. 1085

WESTERN COLLEGE OF NEW MEXICO

v.TURKNETT.

Supreme Court of New Mexico.

Aug. 13, 1912.

Syllabus by the Court.

Where a cause is tried by a jury, and the court directs a verdict for the plaintiff at the conclusion of the evidence, a motion for a new trial must be presented to the trial court, and a ruling had thereon in such court, in order to preserve and present to this court errors alleged to have been committed by the court below during the trial.

Where a jury is impaneled and evidence taken before it on the trial of the cause, it is a “jury trial,” though the jury renders its verdict by direction of the court.

Where, after the sustaining of a demurrer to an answer, the pleader elects to amend, he waives the right to allege error on the ruling.

Appeal from District Court, Eddy County; before Chief Justice William H. Pope.

Action by the Western College of New Mexico against J. W. Turknett. Judgment for plaintiff, and defendant appeals. Affirmed.

A demurrant waives his right to object to an adverse ruling on his demurrer by proceeding to trial on the merits or by subsequently pleading over to the merits.

J. B. Atkeson, of Artesia, for appellant. S. D. Stennis, Jr., of Carlsbad, and Robertson & Atwood, of Artesia, for appellee.

ROBERTS, C. J.

This action was instituted in the court below by the appellee against the appellant to recover from the appellant the sum of $500 upon a subscription contract given to secure the location of a Methodist college at Artesia. Issue was joined and a trial was had, and upon the conclusion of the evidence the court directed the jury to return a verdict in favor of the plaintiff, upon which verdict judgment was rendered, and from which this appeal is prosecuted.

[1] Numerous errors are assigned by the appellant upon the action of the trial court in the admission and exclusion of evidence, as well as upon the action of the court in directing a verdict for the plaintiff; but these errors cannot be considered by this court, for the reason that no motion for a new trial was filed in the court below. The territorial Supreme Court has held repeatedly that in jury trials a motion for a new trial must be made in the court below, and in the event this is not done the Supreme Court will not review the action of the lower court on appeal or writ of error. In the case of Schofield v. Slaughter, 9 N. M. 422, 54 Pac. 757, the territorial Supreme Court had before it the identical question involved in this case, and the court said: “This court has repeatedly held that a motion for a new trial must be made in the court below, and, in the event this is not done, this court will not review the action of the lower court on writ of error. Rogers v. Richards, 8 N. M. 663 ; Territory v. Anderson, 4 N. M. [Gild.] 228 ; Spiegelberg v. Mink, 1 N. M. 308; Sierra Co. v. Dona Ana Co., 5 N. M. 190 ; Territory v. Chavez, 9 N. M. 282 . The cases above cited are decisive of this case as to the necessity for filing a motion for a new trial. But it is insisted by the plaintiff in error that, in a case where the court directs a verdict, it is not a jury trial, and therefore the law as above laid down applicable to trials by jury, has no application to a trial by jury where the verdict is rendered by direction of the court. We are unable to accept this view of the law.” In the case of Hagin v. Collins, 15 N. M. 621, 110 Pac. 840, the territorial Supreme Court in an opinion written by Chief Justice Pope, in discussing the necessity of a motion for a new trial, in order to have...