7 N.M. 215 | N.M. | 1893
Plaintiff in error assigns several causes of error relying upon the refusal of the court to instruct the jury to return a verdict for the defendant below, and shows here that there was a variance between the declaration and proof, — it is claimed a fatal variance. It is claimed that there was no proof whatever to sustain a verdict against this plaintiff in error. This last construction is borne out by the record, as there does not appear to be a particle of proof to support the declaration against the plaintiff in error. This being the case, it is not necessary for us to go further, and consider in this cause the other points presented. Proof having failed, plaintiff was entitled to have the jury instructed to return a verdict for it. 1 Black, Judg., sec. 207, and cases cited. But plaintiff in error claims that, if the judgment as to it is reversed or set aside, the judgment against its codefendant should also be reversed. To this we can not agree. Defendant sued out writ of error. If its codefendant desired a reversal, it should have asked for it; while if the judgment against it is not good, because indorsed ‘"‘A., T. & S. P. R. R. Co.,” instead of “Atchison, Topeka & Santa Pe Railroad Company,” as it is contended, then there is nothing for us to reverse.
Defendant in error asks in a supplemental motion that we may reform the judgment as to the Atchison, Topeka & Santa Fe Railroad Company. That defendant is not yet in this court. It would appear from the instructions given that the court only regarded this ease as against the Atchison, Topeka & Santa Fe Railroad Company, and, indeed, there was a suggestion in the oral argument that the cause had been dismissed as to the plaintiff here. This, as stated, before, does not appear upon the record, and, for the reasons given, the cause will be remanded, with instructions to the court below to set aside the judgment as to the New Mexico & Southern Pacific Railroad Company.