16 N.M. 322 | N.M. | 1911
OPINION OP THE COURT.
This is an action in ejectment brought by appellants. Judgment was entered against them on a verdict by-a jury and they appeal. But for the oversight of appellant’s counsel, this case might have been before us on its merits. As it is, we are compelled to send it back for another trial, leaving untouched what is really the main contention between the parties. It seems that the appellants, in another action in the same court, obtained a final decree against the appellee quieting their title as against him to the land involved in this action. Appellee, a few days before the trial of this action, applied to Judge Wright for an order vacating the decree in the equity suit, which application was granted. When this action came on for trial, appellant’s counsel offered in evidence the decree in the equity suit. Counsel for appellee objected, because the decree had been vacated. Counsel for appellants, in replying to this objection, called the court’s attention "to the fact that its own record shows that no motion was filed on behalf of the defendant to set aside the decree in question until more than sixty days after such decree was entered of record; and that the order setting aside the decree was not made until four or five months after the decree was entered.” The court then suggested that it would be better to "get an abstract of the record on that point offered in connection with this, so as to get it into the record of this case,” to which counsel for appellants replied: “We will offer a certified copy of that in the morning and also the motion that was filed and show when it was filed.” _ The court then denied the offer and appellants excepted and rested their case. The certified copy of the motion to set aside the decree was never put in the case, and, as far as the record before us is concerned, it stands as though the court below refused to allow appellants to introduce in evidence the equity decree, which was, to all intents and purposes, in full force. Obviously the court committed error, unless it could have taken judicial notice of the subsequent proceedings in the suit to quiet title, and such is the contention of appellee, and presents the only question for our determination.
The judgment of the lower court is reversed and the cause remanded.