Denver & Rio Grande Railroad v. United States

9 N.M. 389

• Court: New Mexico Supreme Court
• Decided: August 23, 1898
• Docket: Nos. 721, 731
• Status: Published

Opinion

MILLS, C. J.

The above entitled causes were considered and heard as one in this court. They grow out' of a suit in trover brought in the Eirst judicial district of this territory by the United States against the Denver & Eio Grande Eailroad Company, to recover five thousand dollars alleged damages for the conversion of certain timber and railroad ties taken by the defendant from the public lands. Judgment was given in favor of the United States for one hundred and seventy-four dollars. Both sides sued out writs of error alleging on the one side that no judgment for any amount should have been given and upon the other that it was too small. No evidence was taken in the trial before the lower court, as the case was submitted entirely upon a stipulation and the rulings thereon.

This stipulation evidently does not cover all the facts in the case, as it fails to show the contents of a special act of congress, approved June 8, 1872, and an act amendatory thereof approved March 3, 1877, and as the law required special acts to be proven on the trial of a cause the same as any other fact, as its contents do not appear in the record we can not take judicial knowledge thereof. Leland v. Wilkinson, 6 Peters 317; 1 Wharton on Ev., S. 291, and cases cited in note.

As both sides complain of the judgment below, and as both ask for new trial we have, upon consideration, in the interest of justice and in order that a trial may be had upon the merits, concluded to grant the request.

The judgment entered below is therefdre reversed, and the case is remanded to the First judicial district court with instructions to grant a new trial.

Leland, Parker, McFie and Crumpacker, JJ., concur.