Oliver Typewriter Co. v. Burtner

117 P. 728, 16 N.M. 271

• Court: New Mexico Supreme Court
• Decided: August 21, 1911
• Docket: No. 1373
• Status: Published

Opinion

OPINION OF THE COURT.

WRIGHT, J.

Counsel for appellants assigns nine grounds of error, but an examination of the same discloses the fact that six of the assignments are to the same general effect, and can be disposed of as one assignment. The remaining three assignments are abandoned by counsel and need not be considered. The contention of counsel for the appellants is, that the judgment rendered by the Court, after the motion to dismiss had been taken under advisement, without notice of the disposition of the motion to dismiss, was void and should have been set' aside on motion. An examination of the record in this case fails to show that the trial court ever made any disposition whatever of the motion to dismiss, unless it can be said, that the entry of the final judgment, in effect, denied the motion.

1 Under the facts in this ease, however, we are of the -opinion that the entry of final judgment, in the manner and form it was entered in this case, did not dispose of the pending motion to dismiss. It appears from the record and bill of exceptions that the motion to dismiss was made at the conclusion of the appellee’s case, and before the appellants had offered any testimony whatever, and it nowhere appears in the record that the appell ants liad rested their case prior to making the motion to dismiss; Under such circumstances, the appellants, upon a denial of the motion to -dismiss, would undoubtedly have the right to proceed with their case and introduce evidence. The Court, by entering ishejndgment set out in the statement of facts, without ruling upon the motion to dismiss, or giving notice to counsel for appellants, clearly deprived appellants of this right. For the reasons stated herein, judgment of the lower court is reversed and the cause remanded for further proceedings not inconsistent with the views expressed herein.