11 N.M. 658 | N.M. | 1903
OPINION OP THE COURT.
A reversal of this cause is urged upon three grounds:
First. That the verdict ivas contrary to the evidence and indicated prejudice and hatred.
Second. That the court erred in overruling the objection to a second trial upon the ground that the plaintiff had not complied with the order of the court granting a new trial.
Third. That the court erred in refusing to submit to the jury certain questions of fact requested' by the defendants.
The second proposition above stated will be first considered. There being no statute in this Territory governing the taxing of costs as a condition to the granting of a new trial in ejectment, the imposition of such terms is within the discretion of the court. It is therefore not jurisdictional, the court having full power to vacate or modify the terms of such order.
Hadley v. Petheal, 23 Civ. Pro. Rep, (N. Y. S. C.) 216; Pennel v. Wilson, 2 Abb. Pr. (N. Y. S. C.) 466; Wentworth v. Kandee, 17 How. Pro. 405; Denn v. Morris, 8 N. J. L. 213; Single v. State Bank, 41 Ind. 423; Williams v. Hodge, 11 Met. (Mass.) 266; Kruger v. Adams, etc. Harvester Co., 9 Neb. 526; Wallingford v. Burr, 17 Neb. 137; Justice v. Fennimore, 1 N. J. L. 339; Boswell v. Jones, 1 Wash. (Va.) 322; Joddard v. Treadwell, 29 Cal. 281; Bergman v. Ashdill, 48 Ind. 489.
It further appears that this matter was not brought to the attention of the lower court in the motion for a new trial. Under numerous decisions of this court, failure to do this is fatal to the assignment.
Chavez v. Territory, 9 N. M. 282; Territory v. Christman, 9 N. M. 587; Schofield v. Slaughter, 9 N. M. 435; Territory v. Archibeque, 9 N. M. 405; Conway v. Carter, 68 Pac. 941.
The first, second and third assignments of error will be considered as one, as defendants urged their consideration as showing that the verdict was contrary to the evidence, and manifested prejudice and hatred toward the defendants.
Brewer, J. in Railroad v. Holley, 30 Kan. 473,. said: “The court is not a mere mouthpiece through which the party interrogates .the jury. The jury is not,, as it were, placed upon the witness stand to be cross-examined by counsel. It is the duty of the court to supervise the questions presented; to select the most important ..; it should strike out the trifling and unimportant, and should not permit, the jury to be confused, and the case lumbered up with useless, matter.” •
The judgment of the court will be affirmed with costs. And it is so ordered.