11 N.M. 523 | N.M. | 1902
OPINION OP THE COURT.
This notice and claim seems to comply with the requirements of the statute and it had the effect of making it the duty of the defendant Smith, the officer in charge, to ascertain the amount and value of the property by ap-praisement as required by section 1745, Compiled Laws 1897, which provides: - “In all cases where it is necessary to ascertain the amount or value of personal property exempt under this act, it shall be estimated and appraised by two disinterested householders of the county, to be selected by the officer holding the execution or attachment, and by him sworn to impartially make such appraisement.”
Tbe record shows that the plaintiff was proceeding to prove the value of the property and damages for detention thereof, but as the defendants’ counsel objected to such proof and the court sustained the objection, the plaintiff was prevented from making the desired proof. The court erred in sustaining the objection to this proof, but as the error was induced by the defendants, they can not be permitted to take advantage of it in this court, and it is therefore harmless and not reversible error. 2 Ency. of Pl. and Prac., pages 516-519.
The record shows that after the court had instructed the jury to return a certain verdict which was handed them by the court and which was no doubt signed at once, the counsel for defendants made certain offers of proof by the way of making up a record. These offers therefore were not considered in the lower court and can not be in this.
The court being of the opinion that the bill of sale was accompanied by an actual delivery and-change of possession of the property conveyed by it; that the property conveyed was the exempt property of Cooper who executed the bill of sale, and that even if the bill of sale were held to operate as a mortgage, tbe property itself Avould not be subject to levy and sale, absolutely, without a tender at least of the value of the mortgage debt to the mortgagee. Therefore, the appellants have no right to recover in any event, and, therefore, it would be the duty of the court to set aside a verdict if the same had been rendered in favor of the defendants upon a trial in this case. This court has repeatedly held that under such circumstances the court may without error direct a verdict for the opposite party. Candelario v. Atchison, Topeka & Santa Fe Railroad Company, 6 N. M. 266. That the court directed a verdict for the appellee in this case was not error under the facts disclosed, and, there being no reversible error in the record, the judgment of the court below is affirmed with costs.