141 P. 156 | N.M. | 1913
Lead Opinion
"(1) That there is a defect of parties plaintiff.
"(2) That several causes of action have been improperly united.
"(3) That the complaint does not state facts sufficient to constitute a cause of action."
The remaining appellees also interposed a demurrer upon the same grounds stated above, supplemented by a fourth ground, viz.:
"That these defendants, or any of them, are not necessary or proper parties to the complete determination of the action."
Both demurrers were sustained generally by the court, and plaintiff elected to stand upon his complaint, and a judgment was entered dismissing the same, from which judgment this appeal is prosecuted.
[1] Appellant has assigned as error the action of the court in sustaining the demurrers. It will be noted from the above statement of the case that the first demurrer was predicated upon three grounds, and the second upon four. The order sustaining the demurrers being general, it was incumbent upon the appellant, in order to secure a reversal, to show that no one of the grounds of demurrer was well taken. In his brief, and upon the argument of the case, the only point made was that the complaint stated *3 facts sufficient to constitute a cause of action. This proposition may be conceded without reversible error existing, for it may be that the court based its decision entirely upon one or both of the remaining grounds of the demurrer, and, should we hold with appellant upon this contention, we would be required, necessarily, to pass upon the other grounds of demurrer in order to determine the propriety of the action of the trial court. The universal doctrine is as sated by Judge Elliott in his App. Proced. § 444, that:
"It is essential that all points be made in the brief, and properly made; if not so made, they are waived. Many cases affirm this doctrine, although the phrase employed usually, not always, however, is, all questions not made in the briefs are regarded as waived."
And the courts uniformly refuse to consider an assignment of error which is not urged or discussed in the briefs or argument of counsel for appellant or plaintiff in error. See Century Digest, Appeal and Error, par. 4256. Upon the party who alleges error in the action of the court below rests the burden of showing that the judgment or decree appealed from is clearly wrong, or that error, to his prejudice, has been committed, and an appellate court will not search the record and review questions not raised or insisted upon in order to reverse the judgment.
In the case of Powell v. Palmer,
In the case of Central Iron Coal Co. v. Thompson,
"Appellant not having even undertaken to show, and not insisting here, that no error infected the giving of the other five charges, or any one of them, quoted in respective grounds of the motion, the presumption of correctness of the action of the court below has unquestioned right to ascription to those grounds of the motion for new trial, or any one of them, not argued as just bases, or basis, for the order granting the new trial."
So in this case it may be presumed that the court based its order sustaining the demurrers upon one or both of the grounds of demurrer not urged here as being without merit.
As was said in the Supreme Court of Iowa in the case of Krause v. Lloyd,
"The demurrer was sustained generally. Therefore we do not know whether it was sustained upon all or some one of the several grounds. There being one ground to sustain the ruling, we cannot say that the court erred in sustaining the demurrer, nor can we know what the view of the court was as to any ground of the demurrer."
[2] In the case of Goldsberry et al. v. State ex rel. Haugham,
For the reasons stated, the judgment of the lower court will be affirmed, and it is so ordered.
HANNA and PARKER, JJ., concur.
Addendum
After a careful reconsideration of this case, we are compelled to adhere to our former opinion. *5