19 N.M. 612 | N.M. | 1914
OPINION.
Several assignments of error are presented for consideration, but we must first consider a motion for the dismissal of the writ of error upon the ground that the writ was not sued out within one jrear from the date when the judgment in the lower court became final.
The court rendered its judgment on January 10th, 1912, and at the same time made an order granting plaintiff in error twenty days within which tb file a motion for new trial, which was filed fifteen days later, but not disposed of until January 16th, 1913, almost a year later, when it was overruled. This writ of error was sued out of this court January 10th, 1914.
The question, therefore, presented is whether the judgment became final upon the date of its entry, or not until the order denying and overruling the motion for a new trial was made and entered.
Our statute of limitation upon the right to an appeal is Sec. 1, Chap. 57, Laws of 1907, viz:
“Any person aggrieved by any final judgment or decision of any district court in any civil cause may, at his election take an appeal or sue out a writ of error to the supreme court of tbe territory at any time within one (1) year from the date of the entry of the same. Appeals or writs of error may also be taken from final judgments or decrees in actions for partition that determine the rights and interests of the respective parties and direct partition to be made.”
In many jurisdictions where appellate courts have been called upon to pass upon general statutes, such as ours, providing that the appeal or proceedings in error shall be-instituted within a certain time from the rendition or entry of the judgment or decree, it has been held "that where the motion for a new trial or rehearing is seasonably made, the time is to be computed from the date of the-denial of the motion, and not from the date of the rendition or entry of the judgment or decree, where the motion was necessary to the consideration in the appellate court of the questions involved. Thompson on Trials, Sec. 2730; 2 R. C. L. 107; Pearce vs. Strickler, 9 N. M. 46, 49 Pac. 727; Conrodt vs. Lepper, 13 Wyo. 99, 3 Am. & Eng. Ann. Cases 627 (see cases collected in note following last citation).
This rule may be said to have the sanction of the larger' number of American appellate courts, though the rule is severely criticized as one growing out of judicial legislation and is not' followed by all American jurisdictions. Those departing from this rule, and holding that the time is to be computed from the actual rendition or entry of judgment or decree without regard to the fact that a motion for new trial or rehearing is pending, as evidenced by, at least, a partial list of the cases so holding, are, California, Colorado, Michigan, Oregon, Ohio, Oklahoma and Texas. See Bonheimer vs. Baldwin, 42 Cal. 27; Brooks vs. San Francisco, etc., 110 Cal. 173, 42 Pac. 570; Henry vs. Merquire, 111 Cal. 1, 43 Pac. 387; Houser etc., vs. Hargrove, 129 Cal., 90, 61 Pac. 660; Puckhaber vs. Henry, 81 Pac. 1105, 147 Cal.424; Freas vs. Townsend, 1 Colo. 86; Slatterly vs. Robinson, 7 Colo, App. 22; Burehinell vs. Bennett, 10 Colo. App. 150; Hill vs. Hill, 114 Mich. 599, 72 N. W. 597; Selig vs. Ackron etc., 10 Ohio Cir. Dec. 535, 19 Ohio Cir. Ct. 633; Brown vs. Coal Co., 48 Ohio St. 542, 28 N. E. 669; Dowty vs. Pepple, 50 N. E., 923, 58 Ohio, St. 395; Cooper vs. Yoakum, 91 Tex. 391, 43 S. W. 871; Doorley vs. Buford, etc., 5 Okla. 594, 49 Pac. 936; Lee et al., vs. Summers, 130 Pac. 268 ; Manes vs. Hass, 28 Okla. 489, 114 Pac. 698; McCartney vs. Shipherd, 117 Pac. 814, 60 Ore., 133; Gearin et al., vs. Portland, etc., 124 Pac. 258; Hahn vs. Astoria National Bank, et al., 125 Pac. 284; Miller vs. Miller, 131 Pac. 308.
We understand the reason generally urged in support -of the first rule, herein referred to, to be that the character of finality does not attach to the judgment or decree until the motion for a new trial has been disposed of. The -chief objection to the rule is, and this has given rise to the second rule, that the statute of limitation usually provides that the proceedings looking to a review of the cause must be instituted within a fixed time after the rendition or entry of the judgment or decree, and to modify the terms of the statute by judicial opinion, without statutory authority for such ruling, to the effect that the time limited is extended until a motion for a new trial or rehearing is disposed of, cannot be other than judicial legislation.
We have observed that many of the decisions favoring the rule that the statute is tolled, by the motion for a new trial, are of jurisdictions where the period of limitation is short, as where it is -ninefy da}rs or six months; although some eases are to be found where the period is longer. Other reasons for the rule exist dependent upon statutory or other peculiar conditions, some of which are pointed out in the opinion of an Oregon case. Gearin et al., vs. Portland Ry. L. & P. Co., 124 Pac. 256, as, for example, where a statute provided that if the motion assigns as a reason for the new trial an exception to the decision of the ■ease, the decision shall be carried forward to the time of ruling upon such motion; where a motion for a new trial is made, by statute, a prerequisite step in the proceedings for review; or, where, by statute, the motion operates as a stay of execution.
It would be idle to give further consideration to the reasons supporting or opposed to either of the two rules referred to in this opinion, it being sufficient to say that the rule should be, and generally has been considered, dependent upon statutory provisions of the different jurisdictions.
We, therefore, turn to a consideration of our statutes affecting the question.
This being a case tried to the court without a jury, a motion for a new trial might be said to be unnecessary, (Sec. 24, Chap. 57, Laws 1907), and it is contended by defendant in error that while it was the privilege of plaintiff in error to file a motion for a new trial, it only had the effect of staying execution until it was disposed of and the judgment was notwithstanding a final one and the only one entered in the cause.
Several other assignments of error are presented for consideration, but one is chiefly relied upon by plaintiff in error, and being decisive of the case, it is necessary only to dispose of this, the third assignment, which, quoting from brief of plaintiff in error, is as follows:
“The court ,,erred in rendering judgment against the said plaintiff in error in the sum of six thousand four hundred ninety two ($6,492.00) dollars, the evidence in said cause not warranting or sustaining a judgment in said cause in any sum in excess of two hundred eigthythree ($283.00) dollars; it appearing from the record and transcript of the evidence herein that the defendant in error produced no evidence proving or tending to prove that plaintiff in error cut or procured to be cut any trees or timber whatsoever upon the lands of defendant in error and the only evidence in said cause which proves or tends to prove that plaintiff in error cut and procured to be cut timber on said lands is the evidence of the wit- ’ ness, Raynxundo Romero, a witness who testified on behalf of plaintiff in error, and the evidence of said Raymundo Romero proves that the value of the timber so cut by said plaintiff in error was of the value of only two hundred eighty-three ($283.00) dollars.”
We do not deem it necessary to discuss much of the testimony introduced in the case. The essential point in controversy is whether it was proven that plaintiff in error cut the timber in question, and to the extent of the amount awarded as damages by the judgment.
■By defendant in error it is urged that the answer of plaintiff in error, in a former proceeding, wherein the title to the same lands was involved and an injunction sought against the present plaintiff in error and others to restrain trespass thereupon, supplies the alleged lack of evidence in this respect, and being an admission against interest, is conclusive upon plaintiff in error. The essential allegations of this answer in the respect referred to, are:
“And further answering, these defendants deny that the said firm of Dye & Romero, have been engaged in cutting and is engaged in cutting, any timber upon the lands described in said complaint, or any part of the same, but defendants allege Eugenio Romero is engaged, with authority of the said commissioners of the said Grant of Chilili, in cutting ties upon parts of the tracts of land described in said complaint, but which said parts of said tracts these defendants deny that the said plaintiff has any right or title thereto, or ever had any such right or title.”
Defendant in error, contends that by this answer plaintiff in error “admitted that he and he only cut timber from appellee’s land.” We do not consider that this is a correct interpretation of the pleading. He denied that Dye & Romero had been so engaged and affirmed that he, himself, had been cutting timber, but the language is not susceptible of the construction that none others had been cutting. The evidence of one of the witnesses is that a large force of men under employment by a firm'known as Daub & Romero had been cutting over the tract of land in question during the winter of 1904, and within the period of time fixed by Ross as the time within which the timber had been cut, which was included within his estimates- made in June, 1906. This testimony would certainly cloud the issue of whether Romero cut all the timber in question, and there being no proof that he did so, we consider the assignment well taken.
Therefore, the judgment is reversed, and a new trial granted, and, IT IS SO ORDERED.
