Melini v. Freige, 15 N.M. 455

Melini v. Freige

15 N.M. 455 | N.M. | 1910

OPINION OP THE COURT.

MECHEM, J.

There are six assignments of error made in the brief. Of these,, the 2nd, 3rd, and 6th assignments read as follows:

“That the said verdict is contrary to the law and the evidence.”

“That said verdict was rendered against the weight of evidence,” and “for many other manifest errors in the trial of this cause, which appear in the record and were prejudicial to the plaintiff.”

1 It has been repeatedly held by this court that an assignment of error must point out the specific error complained of. Schofield v. Territory, 9 N. M. 526; Cevada v. Miera, 10 N. M. 62; Pearce v. Strickler, 9 N. M. 467.

2 In the case of Cunningham v. Springer, 13 N. M. 259, it was said: “This court has! repeatedly held, that where there is a conflict of evidence, it being the exclusiva province of the jury to determine the weight and credibility of the testimony, the verdict will not be disturbed in the appellate court”; citing numerous cases heretofore decided on this point by the court.

For these reasons we will not- consider the 2nd, 3rd and 6th assignments of ¡error.

3 2. The plaintiffs assign error to the action of the court in requiring them, before leave to file a reply, to dismiss their attachment. In view of the fact that the jury found that there was no debt owing from defendants to the plaintiffs, we deem it unnecessary to pass upon this assignment, because if the debt upon which the attachment was set out did not exist, it did not matter whether or not there was error in the court’s requiring the appellants to dismiss their attachment for had the attachment remained in force there could have been no lien. Smith v. Morgan, 56 S. W. 950.

3. By their fourth and fifth assignments of error, the plaintiffs claim that the court erred in permitting the witness Alex Fregie, one of the defendants, to testify as to the value of the electric light fixtures, and shelving alleged to have been left in the building because said evideuce is irrelevant and immaterial, and because no proper foundation for such evidence is laid.

4 We have examined the record of this witness’ testimony and find that he did not testify as to the value of the shelving and fixtures, hut only as to what they cost, but we believe that this evidence was admissible as it went-to show that the shelving and fixtures constituted a valuable consideration, for it was alleged in the answer that “the said lease was for a valuable consideration by the defendants to the plaintiffs then and there paid, then and there surrendered and abrogated;” and the reply denies this in these words: “The plaintiffs deny that for a valuable consideration or at all they did abrogate the léase mentioned in the pleadings herein.” The consideration alleged by the defendants to be a valuable consideration was the shelving and fixtures, so that necessarily the question was raised as to whether or not they were a valuable consideration. Therefore, any evidence tending to show that they were of some value was competent and material, and certainly, testimony as to what they cost the person parting with them was competent to show, not their valúe, but that they were of some value.

For the foregoing .reasons the judgment of the lower court is affirmed; and it is so ordered.