Neher v. Armijo

66 P. 517, 11 N.M. 67

• Court: New Mexico Supreme Court
• Decided: October 1, 1901
• Docket: No. 902
• Status: Published

Opinion

OPINION OP THE COURT.

PARKER, J.

1 The first point presented by the appellant is the effect of the judgment in ejectment upon the rights of the parties in this suit. At common law, ejectment was nominally a mixed action, but recovery was bad only for nominal damages. Following the judgment in ejectment, the successful plaintiff had an action in the form of trespass m et armis, but in effect to recover rents and profits. 1 Chitty, Pleadings, 193. If brought in the name of lessor of the plaintiff, who was the. real party in interest, recovery could be had for rents and profits received by the defendant previous to the demise as laid in the declaration in ejectment (Id. 194), for any period not barred by the statute of limitations. Id. 196. In case of ouster of one cotenant from the possession of the premises, as in this case, the same rights and remedies existed in his favor against his cotenant who had ousted him. Id. 195; Freeman on Coten. & Par., sec. 290; Am. & E. Ency. Law (2 Ed.), 513; Newell on Ejectment, p. 125, sec. 5, and p. 625, sec. 30.

Our ejectment statute is as follows: “If the plaintiff prevail, he shall recover for damages the value of the rents and profits of such premises to the time of the verdict or the expiration of the plaintiff’s title, under these limitations: First. If the defendant had knowledge of the plaintiff’s claim or title, then for the whole time he had such knowledge. Second. If he had no such knowledge, then from the commencement of the action.” Comp. Laws, 1897, sec. 3170.

It will be seen that the statute limits recovery in ejectment to a period subsequent to knowledge of plaintiff’s right by defendant, or, in the absence of knowledge, to the period covered by the pendency of the action. It is claimed for the judgment in ejectment by appellant that it operates as a bar to any further recovery of rents and profits, but we can not agree to the proposition. It is first, urged that the measure of recovery provided by the. ejectment statute is exclusive in all cases. But the common law right is to recover the entire share of mesne profits due plaintiff and which have been received by defendant over and above his just share. The statutory right is to recover in ejectment for a limited period only, dependent upon notice of plaintiff’s rights. The scope of the statute is limited, and no attempt is made therein to give a complete remedy. The common law and statutory remedies do not cover , the same field. There is nothing in the statute, either in express terms or by implication, indicating an intention to curtail the common law remedy for rents and profits. It is further urged by appellant that appellees, having attempted to recover in the ejectment proceedings for the period anterior to the bringing of that action and for the same period for which recovery is sought in this suit, they are therefore barred. But we do not so understand the application of the rule invoked. This attempt amounted, simply, to the selection of .the wrong remedy to enforce the right claimed. The statute prohibited recovery of these rents and profits in the ejectment suit, and the court properly excluded proof of the same. They were not, could not be under the statute, litigated in that action. Under such a state of the law and facts, the judgment in the ejectment can be res judicata as to the amount of rents and profits due appellees only so far as the same was or could be adjudicated, viz., covering the period of knowledge of appellees’ rights by appellant, or, in the absence of such knowledge, from the institution of the action of ejectment. This situation is clearly distinguishable from a case where an entire demand is properly litigable in a cause, and a party fails to recover all he is entitled to because of a failure or neglect to produce necessary proof.

It is further urged by counsel for appellant that it has been held otherwise, but we do not so understand the cases cited. The Vermont cases cited are decided upon a statute which authorizes and requires a recovery in ejectment for all damages, without any limitation, as in our statute. Under such a statute, it is clear that the whole subject of mesne profits must be litigated, and a judgment would be res judicata whether full recovery was in fact had or not. Strong v. Garfield, 10 Vt. 502. Walker v. Hitchcock, 19 Vt. 643; Lippett v. Kelley, 46 Vt. 516. The Missouri cases cited do not support the contention made for them. In Stewart v. Dent, 24 Mo. 111, a recovery of rents and profits was sought covering the same period for which recovery had been had in a former action and the court properly held the former judgment to be a bar. The same thing was held in Lee v. Bowman, 55 Mo. 400. In Gillum v. Case, 16 So. (Miss.) 236, the court simply held that under the statutory provisions of that State, in case a defendant made claim for improvements, it devolved on the plaintiff to present his claim for rents and profits, and, having failed to do so, he was barred by the judgment. It seems clear that none of these eases pretend to decide the point involved in this case, viz.: whether a judgment of recovery in ejectment under a statute like ours, is a bar to a recovery of rents and pi’ofits accruing prior to notice to defendant of plaintiff’s claims. We hold as before indicated, that it is not.

2 The next question presented is as to the application of the statute of limitations to the claim of appellee for rents and profits. It is urged by appellees that appellant is not in a position to present the question to this court, he having filed no exception to the referee’s report on that ground. It appears from the record that objection was made, in pursuance to a plea of the statute of limitations filed by appellant, to certain testimony offered by appellees as to rents and profits received by appellant covering a period of more than four years, and upon which the referee, in determining the amount of rents and profits due, found for ap-pellees. Upon the coming in of the referee’s report, appellant filed exceptions to the same based solely, so far as the finding of the amount of rents and profits due was concerned, upon the claim that the rate of charge against appellant should have been according to the rental value of the premises without the improvements which appellant and his grantors had erected thereon. Thus the question of the application of the statute of limitations was never presented to the court below, and is insisted upon here for the first time, except as the same was raised by the plea and objection to the testimony. It is therefore urged that appellant can not now avail himself of the objection, and we think the point well made. It is fundamental that errors complained of must be objected to and exceptions saved or they will be disregarded in an appellate court. 8 Ency. Pl. and Pr. 157; Crabtree v. Segrist, 3 N. M. 495; Territory v. O’Donnell, 4 N. M. 196. And this rule applies to errors complained of in reports of masters or referees. 8 Ency. Pl. & Pr., 283-284; Williams v. Thomas, 3 N. M. 550; Newcomb v. White, 5 N. M. 438; Story v. Livingston, 13 Peters (U. S.) 357; Topliff v. Topliff, 145 U. S. 172; Gordon v. Lewis, 10 Fed. Cases, 808. The alleged error not being preserved properly, will be deemed to be waived. In so holding we are not unmindful of sub-sec. 119 of sec. 2685 of the Comp. Laws of 1897, which dispenses with formal exception but in no sense dispenses with objection in order to preserve the error complained of. We simply hold that objection must be preserved according to the forms of law to be available in this court.

3 The next point urged by appellant is that he should have been allowed for improvements erected upon the premises by his grantors. The principle is admitted by appellees, but the contention is made by them that no allowance can be made in this case, for the reason that the improvements have been paid for out of the rents and profits received by appellant’s predecessors in title. It appears from the transcript that each of the appellees has been the owner of an undivided one-tenth interest in the premises since the death of their father in April, 1882, and have received no share of the rents and profits of the property from December, 1883, until August, 1896, the date of the institution of the ejectment suit. During that time Williamson, one of the appellant’s predecessors in title, made improvements amounting to from $2,200.00 to $2,500.00; but during the time he had possession of the property, he received more than $3,000.00 in rents and profits from the same. It thus appears that’ appellant’s predecessor in title was- fully paid for all the improvements he made upon the property out of the rents and profits. The repairs put upon the premises by appellant, of which he made satisfactory proof, were allowed to him by the court below. It is a sufficient answer, therefore, to appellant to say that all improvements by his predecessors in title have been paid for out of the proceeds of the rents and profits of the property, and that it would be inequitable to again charge appellees with the same. And if the same had not been fully paid, it would be incumbent on appellant to account for as much as had been paid. See Bright v. Boyd, 4 Fed. Cases No. 1874-5; Parsons v. Moses, 16 Iowa 446, 447; Sedgwick & Waite on Trial of Title to Land, sec. 706. This disposes of all of the substantial errors complained of by appellant.

4 Appellees complain that error was committed by the court below against them in not charging appellant with interest on the annual receipts of rents and profits which belonged to them and in allowing appellant certain items of taxes paid by him after the institution of the ejectment suit, exception to which was duly saved, but no appeal or cross-appeal was taken by them and no assignments of error filed. It requires no citation of authority to establish the proposition that, independent of some statute providing a different rule, appeal and assignment of errors are quite as essential to present a question to an appellate court for review, as are objections and exceptions to the errors complained of. Counsel seems to concede the general rule, but insists that under the peculiar terms of our statute, it is the duty of this court to correct the errors of which he complains. The statute relied upon is as follows:

“In all cases now pending in the Supreme Court, or which may hereafter be pending in the Supreme Court, and which may have been tried by the equity side of the court, or which may have been tried by a jury on the common law side of the court, or in which a jury may have been waived, and the case tried by the court or the judge thereof, it shall be the duty of the Supreme Court to look into all the rulings and decisions of the court which may be apparent upon the records, or which may be incorporated in the bill of exceptions, and pass upon all of them, and upon the errors, if any shall be found therein, in the rulings and decisions of the court below, .grant a new trial or render such other judgment as may be right and just aud in accordance with law; and said Supreme Court shall not decline to pass upon any question of law or fact which may appear in any record either upon the face of the record or in the bill of exceptions because the cause was tried by the court or judge thereof without a jury, but shall review said cause in the same manner and to the same extent as if it had been tried by a jury.” Comp. Laws 1897, sec. 897.

If the interpretation of this section of the statute invoked by appellees is to be adopted, it is easily made manifest to what absurd results we will be brought. It will be no longer necessary to make objection or save exception in the trial courts of this Territory. Learned counsel may sit by and see the trial court, in the hurry and tedium of a protracted trial, commit any sort of error and never call attention to the same or lend the court the aid to which it is entitled in arriving at a correct conclusion. If unsuccessful, he may appeal to this court and assign errors, or, failing in that, may call attention to the errors complained of in his brief, or, failing in that, he may turn over the record and bill of exceptions to this court and say: “Here is this record. It is full of errors. Take it, examine it, and render such judgment as may be right and just, and in accordance with law.” And the successful party may do the same thing in case of an appeal by his opponent, as in this case. It is apparent that the legislature never intended the statute to have an effect so inconsistent with all the principles of trial and appellate procedure and the due ■administration of justice. This statute does not pretend to deal with methods of saving exceptions and presen ting-errors to the appellate court; it simply provides that errors shall be passed upon. Can it be contended that immaterial, invited or waived errors are to be passed upon? We think not. An error of the trial court ceases to be such in the appellate court, if the same is immaterial, invited, or has been waived. We think the errors mentioned in the statute are such errors only as have been made available by the party presenting them. We are confirmed in this conclusion by the persistent ruling of this court ever since this statfite was passed in 1889 to the effect that only such errors as are properly saved and presented will be considered. See Laird v. Upton, 8 N. M. 409; Padella v. Territory, 8 N. M. 562; and Grayson v. Lynch, 163 U. S. 468, in each of which this section was held not to modify existing rules of procedure. It is likewise to be understood that we recognize the exception to the general rule which authorizes this court to notice without exception or presentation, jurisdictional and other matters which may render a case inherently and fatally defective and require a reversal. There being no available error in the record, the decree of the- lower court will be affirmed, and the cause remanded with instructions to carry into effect the decree therein rendered, and it is so ordered.

Mills, C. J., McFie and McMillan, JJ., concur. Crumpacker, J., having heard the case below, took no part in this decision.