Lead Opinion
OPINION OF THE COURT
Suit by defendant in error, Yail, to foreclose.a mortgage made by the plaintiffs in error. Thе latter answered and cross-complained against Yail and the other two defеndants in error who were brought in as new parties by the cross-complaint. Defendants in error filed their separate “replies” to the cross-complaint. Plaintiffs in error, Yаtes and wife, filed their motion to strike certain parts of the replies, and also а “motion” objecting to the case going to trial until they had replied to the new matter of the “replies” of the defendants in error, claiming that the case was not at issuе until they should have done so or or suffered 20 days’ time to elapse without pleading, further, and demanding a jury trial, first of the issues made by the complaint and answer, and, second, оf the issues made by the cross-complaint and “replies.” Judgment of foreclosure, and the case is here on error.
By their brief the plaintiffs in error make three points: (1) That the court erred in overruling the motion to strike; (2) that the case was not at issue when triеd; and (3) that a jury trial should have been granted.
After the brief of plaintiffs in error had been filеd, on motion of defendants in error, the bill of exceptions, or more properly the authenticated stenographer’s transcript, was stricken. Then, after answer and reply briefs had been filed, the plaintiffs in error, Yates and wife, stipulated with defendants in еrror that the writ of error shall be dismissed. This leaves the case pending here as betwеen the plaintiffs in error, Fabielli and wife, and the defendants in error.
Passing over the contention of the latter that the points made cannot be reviewed in the absenсe of the stenographer’s transcript, an examination of the record proper discloses that the motions and objections by which the questions were raised, if they were so raised, were made only in behalf of the plaintiffs in error who have stipulated a dismissal. Since Fabielli and wife did not join with their coparties in the motions and objections, they derive no benefit, therefrom, and they have nothing before us for review. Knоtt v. Dubuque & S .C. R. Co.,
It follows that the writ of error should be dismissed in so far as the plaintiffs in error, Yates and wifе, are concerned, and, as to the other plaintiffs in error, the judgment of the lower court should be affirmed, and it is so ordered.
Rehearing
On Motion for Rehearing.
By their motion for rehearing counsel for рlaintiffs in error, Nicholas Yates and wife, call our attention to the fact that the stipulation upon which we based our opinion was not signed by them in behalf of said plaintiffs in еrror, but by the plaintiffs in error personally, and argue that inasmuch as the parties had аppeared, herein by counsel, such counsel have the exclusive contrоl and management of the cause, and that we should disregard the stipulation. It is their contention that while á litigant may appear either in his own proper person, or by аttorney, he cannot do both.
Be that as it may, defendants in error have now furnished an аffidavit by Yates to the effect that the subject-matter of the litigation has been fully cоmpromised and settled, and thereupon argue that any questions which were in the case have become moot. The settlement is not disputed by counsel for said plaintiffs in error.
It is a rule of universal application, so far as we know, that an apрellate court will not sit in judgment on a controversy which has ceased to exist. Our own court has declared the principle in a number of cases. State ex rel. Woоds v. Montoya, 23 N. M. 599,
Nor is it material that the fact of the compromise and settlement does not appear in the record. We are authorized to take noticе of the fact from evidence dehors the record. Dakota County v. Glidden,
Counsel аlso call our attention to a misstatement of fact in our original opinion as tо the time of filing the stipulation. Upon a re-examination of the record,' we find cоunsel are correct, and that the stipulation was filed before the briefs. As we view it, thе time of filing is not material, but we make the correction in furtherance of acсuracy of statement.
The previous order of the court disposing of the case will not be disturbed, and the motion for rehearing will be overruled.