11 N.M. 67 | N.M. | 1901
OPINION OP THE COURT.
Our ejectment statute is as follows: “If the plaintiff prevail, he shall recover for damages the value of the rents and profits of such premises to the time of the verdict or the expiration of the plaintiff’s title, under these limitations: First. If the defendant had knowledge of the plaintiff’s claim or title, then for the whole time he had such knowledge. Second. If he had no such knowledge, then from the commencement of the action.” Comp. Laws, 1897, sec. 3170.
It will be seen that the statute limits recovery in ejectment to a period subsequent to knowledge of plaintiff’s right by defendant, or, in the absence of knowledge, to the period covered by the pendency of the action. It is claimed for the judgment in ejectment by appellant that it operates as a bar to any further recovery of rents and profits, but we can not agree to the proposition. It is first, urged that the measure of recovery provided by the. ejectment statute is exclusive in all cases. But the common law right is to recover the entire share of mesne profits due plaintiff and which have been received by defendant over and above his just share. The statutory right is to recover in ejectment for a limited period only, dependent upon notice of plaintiff’s rights. The scope of the statute is limited, and no attempt is made therein to give a complete remedy. The common law and statutory remedies do not cover , the same field. There is nothing in the statute, either in express terms or by implication, indicating an intention to curtail the common law remedy for rents and profits. It is further urged by appellant that appellees, having attempted to recover in the ejectment proceedings for the period anterior to the bringing of that action and for the same period for which recovery is sought in this suit, they are therefore barred. But we do not so understand the application of the rule invoked. This attempt amounted, simply, to the selection of .the wrong remedy to enforce the right claimed. The statute prohibited recovery of these rents and profits in the ejectment suit, and the court properly excluded proof of the same. They were not, could not be under the statute, litigated in that action. Under such a state of the law and facts, the judgment in the ejectment can be res judicata as to the amount of rents and profits due appellees only so far as the same was or could be adjudicated, viz., covering the period of knowledge of appellees’ rights by appellant, or, in the absence of such knowledge, from the institution of the action of ejectment. This situation is clearly distinguishable from a case where an entire demand is properly litigable in a cause, and a party fails to recover all he is entitled to because of a failure or neglect to produce necessary proof.
It is further urged by counsel for appellant that it has been held otherwise, but we do not so understand the cases cited. The Vermont cases cited are decided upon a statute which authorizes and requires a recovery in ejectment for all damages, without any limitation, as in our statute. Under such a statute, it is clear that the whole subject of mesne profits must be litigated, and a judgment would be res judicata whether full recovery was in fact had or not. Strong v. Garfield, 10 Vt. 502. Walker v. Hitchcock, 19 Vt. 643; Lippett v. Kelley, 46 Vt. 516. The Missouri cases cited do not support the contention made for them. In Stewart v. Dent, 24 Mo. 111, a recovery of rents and profits was sought covering the same period for which recovery had been had in a former action and the court properly held the former judgment to be a bar. The same thing was held in Lee v. Bowman, 55 Mo. 400. In Gillum v. Case, 16 So. (Miss.) 236, the court simply held that under the statutory provisions of that State, in case a defendant made claim for improvements, it devolved on the plaintiff to present his claim for rents and profits, and, having failed to do so, he was barred by the judgment. It seems clear that none of these eases pretend to decide the point involved in this case, viz.: whether a judgment of recovery in ejectment under a statute like ours, is a bar to a recovery of rents and pi’ofits accruing prior to notice to defendant of plaintiff’s claims. We hold as before indicated, that it is not.
“In all cases now pending in the Supreme Court, or which may hereafter be pending in the Supreme Court, and which may have been tried by the equity side of the court, or which may have been tried by a jury on the common law side of the court, or in which a jury may have been waived, and the case tried by the court or the judge thereof, it shall be the duty of the Supreme Court to look into all the rulings and decisions of the court which may be apparent upon the records, or which may be incorporated in the bill of exceptions, and pass upon all of them, and upon the errors, if any shall be found therein, in the rulings and decisions of the court below, .grant a new trial or render such other judgment as may be right and just aud in accordance with law; and said Supreme Court shall not decline to pass upon any question of law or fact which may appear in any record either upon the face of the record or in the bill of exceptions because the cause was tried by the court or judge thereof without a jury, but shall review said cause in the same manner and to the same extent as if it had been tried by a jury.” Comp. Laws 1897, sec. 897.
If the interpretation of this section of the statute invoked by appellees is to be adopted, it is easily made manifest to what absurd results we will be brought. It will be no longer necessary to make objection or save exception in the trial courts of this Territory. Learned counsel may sit by and see the trial court, in the hurry and tedium of a protracted trial, commit any sort of error and never call attention to the same or lend the court the aid to which it is entitled in arriving at a correct conclusion. If unsuccessful, he may appeal to this court and assign errors, or, failing in that, may call attention to the errors complained of in his brief, or, failing in that, he may turn over the record and bill of exceptions to this court and say: “Here is this record. It is full of errors. Take it, examine it, and render such judgment as may be right and just, and in accordance with law.” And the successful party may do the same thing in case of an appeal by his opponent, as in this case. It is apparent that the legislature never intended the statute to have an effect so inconsistent with all the principles of trial and appellate procedure and the due ■administration of justice. This statute does not pretend to deal with methods of saving exceptions and presen ting-errors to the appellate court; it simply provides that errors shall be passed upon. Can it be contended that immaterial, invited or waived errors are to be passed upon? We think not. An error of the trial court ceases to be such in the appellate court, if the same is immaterial, invited, or has been waived. We think the errors mentioned in the statute are such errors only as have been made available by the party presenting them. We are confirmed in this conclusion by the persistent ruling of this court ever since this statfite was passed in 1889 to the effect that only such errors as are properly saved and presented will be considered. See Laird v. Upton, 8 N. M. 409; Padella v. Territory, 8 N. M. 562; and Grayson v. Lynch, 163 U. S. 468, in each of which this section was held not to modify existing rules of procedure. It is likewise to be understood that we recognize the exception to the general rule which authorizes this court to notice without exception or presentation, jurisdictional and other matters which may render a case inherently and fatally defective and require a reversal. There being no available error in the record, the decree of the- lower court will be affirmed, and the cause remanded with instructions to carry into effect the decree therein rendered, and it is so ordered.