Cevada v. Miera

10 N.M. 62, 10 Gild. 62

• Court: New Mexico Supreme Court
• Decided: May 2, 1900
• Docket: 846
• Status: Published

Opinion

MILLS, C. J.

This case should never have been brought before us for review, not only on account of the small amount involved, but also because of there being absolutely nothing in the record on which to base an appeal. Five errors are assigned. The first, is purely formal, (“The judgment of the court is contrary to the law”) as it does not point out in what particular such judgment is contrary to the law, and this court has held in the cases of Pierce v. Strickler, 54 Pac. 748, and in Schofield v. Territory, 56 Pac. 303, that such a general assignment of error is not good ground for review.

Appellate Practice: assignment of error. The assignment that the judgment is contrary to the evidence is not supported by the facts as disclosed by an examination of the record. Such exam- . . , mation shows that the court below had ample testimony upon which to base the judgment. In fact we think that the weight of the evidence was in favor of the defendants.

The assignment that the- court erred in overruling the motion for a new trial, is not well taken, as we have heretofore held that the granting or refusing to grant a motion for a new trial rests in the sound discretion of the court and is not alone appealable. Coleman v. Bell, 4 N. M. 28; Buntz v. Lucero, 7 N. M. 220; Schofield v. Territory, 56 Pac. 306.

The fourth assignment is, “That the trial court erred in refusing to allow plaintiff below, and in error, to prove the time and manner of gale of the property belonging to plaintiff that was attached by the defendant Miera.”

Attachment: Action on bond by claimant of property: issue in. We can find nothing in the record to sustain this contention of the plaintiff. All of the evidence concerning the manner of sale is that given by the witness Jose E. Romero. The attorney for the plaintiff asked him, (Q) “Was the sale of the wool published in a newspaper for a period of three-four weeks prior to the date of the sale and an objection being made the court we think very properly sustained such objection. Our statutes do not require that sales of property made on execution issued from the court of a justice of the peace shall be advertised in a newspaper. (Compiled Laws, 1897, section 3274), nor if they did, do we think that this question would have been relevant. The issue in this case is, was the wool, attached and sold, the property of Jose M. Cevada, or did it belong to some other person? If it belonged to Cevada and was attached and sold as the property of some one else, then he should recover damages, but if it did not belong to him then he should recover nothing. As to whether or not the property attached in the justice court was sold according to law is not material to the determination of the issues in this case.

An examination of the record shows that the court below had ample grounds on which to base the judgment. In fact we think that the weight of the evidence was in favor of defendants, and we accordingly find that there is no error in the judgment complained of, and the same is therefore affirmed.

Parker and McFie, J. J., concur; Crumpacker, J., having heard the case below did not participate in this decision, nor did Leland, J., who was absent.