9 N.M. 422 | N.M. | 1898
The above causes were suits in assumpsit by attachment, commenced in the dictrict court of Bernalillo county, on the sixth day of Harch, A. D., 1894.
Issue was joined by a traverse of the attachment, and upon that issue, the causes having been consolidated by stipulation of counsel, trial was had at the December term, 1897, and a verdict was rendered by direction of the court in favor of the defendant on the eighth day of January, 1898.
On the eighteenth day of January, 1898, motion for a new trial was filed by the plaintiff, and the same was overruled, and by consent of the defendant, judgment was rendered in favor of the plaintiff for the amount due in each of said causes, January 20, 1898.
A writ of error was sued out by the plaintiff in the court below, and the. defendant in error has filed a motion to dismiss the writ of error.
“All motions for new trials in cases tried by juries shall be filed during the term of the court at which the case is tried, and within five days after the rendition, of the verdict or findings.”
The language of this section is unambiguous, and requires motions for new trials to be filed within five days after the rendition of the verdict.
It is clear that the motion for new trial was not filed within the time specified in the statute.
This court has repeatedly held that a motion for a new trial must be' made in the court below, and in the event this is not done, this court will not review the action of the lower court on writ of error. Rogers v. Richards, 8 N. M. 663; Territory v. Anderson, 4 N. M. 228; Speigelberg v. Mink, 1 N. M. 308; Sierra Co. v. Dona Ana Co., 5 N. M. 190; Territory v. Chavez, 50 Pac. Rep. 324.
The cases above cited are decisive of this case as to the necessity for filing a motion for a new trial.
Prior to the enactment of section 2685, sub-section 133, Comp. Laws of 1897, the rules of this court, required motions for a new trial to be filed within five days; and in the case of Rogers v. Richards, above referred to, the rules of this court are declared to have the force of a statute.
It appears from the record in this case that although the motion for a new trial was not filed within the time required by the statute, the same was acted upon by the court, although the record further discloses, that the only evidence of notice to opposing counsel is a letter dated the twenty-second day of January, 1898. The motion was disposed of by the court on the twentieth day of January, two days prior to the date of the notice to opposing counsel.
The motion for a new trial in this case was not filed within the time required by the statute, and the statute must govern as it is too plain to admit of construction. The fact that the court saw fit to pass upon the motion does .not change the matter in any respect. The court’s action can not have the effect modifying the provisions of the statute, and it is immaterial what action the court may have taken upon the motion.
The motion to dismiss the writ of error will be overruled, as the record proper can not be stricken out, but as there is no reversible error in the record, the judgment of the court below will be affirmed with costs.