5 N.M. 289 | N.M. | 1889
This suit was begun in the probate court of Santa Fe county by appellee, Lewis, to recover from the estate of Joseph Lackey the sum of $10,202.20. The claim is stated in the following form:
•“The estate of Joseph Lackey, deceased, to Charles W. Lewis, Dr.
“For 2,500 improved ewes, delivered to said Lackey by said Lewis in April, 1882, on the condition that said Lackey was to pay therefor one half of the increase and one half of the wool from said ewes, there being now due on said contract the following amounts, viz.:
3,868 merino ewes.......................................... $5,802 00
870 yearling ewes.......................................... 870 00
1,336 wethers.............................................. 1,336 00
18,285 pounds of wool...................................... 2,194 20
$10,202 20”
After taking proof in the probate court, the whole demand was rejected. Lewis thereupon appealed to the district court. He there recovered judgment for $5,250. The verdict of the jury contained the items on which the damages were assessed. The administrators of Lackey appealed.
“Though not deemed regular to sign bills of exception in this class of cases, I have done so at the request of counsel in this case.
(Signed) “R. A. Reeves,
“Judge First Judicial District.”
After the seal of the judge has been affixed to the bill, the truth of the statements therein contained can never thereafter be doubted. Saund. Pl. & Practice, vol. 1, p. 318. A bill of exceptions is founded on matter of law, or on a point of law arising out of a matter of fact not denied. 2 Bl. Comm. 372; 1 Saund Pl. & Prac., pp. 316, 317. Every matter of fact arising upon exceptions on the subject of instructions is, to say the least, made doubtful by the manner in which the record comes before us. Appellants’ counsel, by consent of opposing counsel, presented to the court below what they termed a “bill of exceptions,” and that portion of the record deemed essential to a correct review of the case here, but the court made amendments the effect of which was - to leave the whole record in doubt as to whether the memory of the court was correct or that of counsel in presenting the “substance of what occurred” at the trial. We will not undertake to settle the conflict, but will disregard every matter of fact contained in the bill, and not arising out of the record proper.
This leaves for our consideration two questions: