Perkins v. City of Roswell

113 P. 609, 16 N.M. 185

• Court: New Mexico Supreme Court
• Decided: February 4, 1911
• Docket: No. 1352
• Status: Published

Opinion

OPINION OF THE COURT.

ABBOTT, J.

Of the various errors which the ap-. pellant assigns, a considerable proportion must be disregarded as not properly before us,, and others need not be separately treated of, since they present questions of common occurrence on which the law is too well settled to require discussion, especially in view of the conclusion we' have reached, that there was error prejudicial to the defendant in the admission of certain evidence by the trial court, namely, the attorney for the plaintiff put to a witness for the plaintiff the question: '“State whether it is common knowledge that Mrs. Perkins runs a sanatorium ?” To which the witness answered: “It is.” The question was then put: “If you have stated that it is common knowledge as 'to who runs that sanatorium, please state who does run it?” To which the witness answered: “Mrs. Perkins runs it.” To each of these questions the attorney for the defendant objected, in substance, on the ground that it was calling on the witness to give her opinion, and hearsay evidence, and he duly took exception to the action of the court in overruling the objections.

1 2 That proof of facts by evidence of reputation is admissible only on matters of public and general interest, is declared in 1 Greenleaf on Evidence, sec. 137; Wigmore on Evidence, sec. 1586; Jones on Evidence (2 ed.), secs. 301, 302. The cases cited in N. 26 to sec. 302, are especially informing : “Ownership or possession of property, or a modus concerning it, cannot be shown by reputation.” 16 Cyc. 1212: “Title cannot be proved by neighborhood talk. Of course, what one does while in the possession of land is admissible in testimony as to tbe character of the possession.” Hiers v. Risher, 54 S. C. 405, 411; Crippen v. State, Ct. Crim. Appeals, Tex. 80 S. W. 372; “In prosecutions for permitting gaming in a house, ownership cannot be proved by reputation.” See, also, Green et al v. Chelsea, 34 Pick. (Mass.) 71; Wendell v. Abbott, 45 N. H. 349. The evidence in question was admitted to prove that the defendant was maintaining a private hospital or sanatorium as a health resort institution; in effect, that she was the owner of the business, which she denied. The evidence must have been prejudicial to her defense, and should have been excluded. The appellant’s assignment of error, based on the overruling of the motion to abate the judgment on the ground that the ordinance in question had been repealed, is not well founded for the reasons stated in the opinion of the district judge, which we have quoted in the statement of the case, and the fact, if it is one, that the ordinance has been repealed, has not been brought to our attention by the defendant in a way to warrant our giving any effect to it in the disposition of the case. The judgment of the district court is reversed and the cause remanded.

W. H. Pope, C. J., having ruled in the motion' to quash the complaint herein, did not participate, nor did Mechem, A. J., who tried the cause.