Pople v. Orekar

161 P. 1110, 22 N.M. 307

• Court: New Mexico Supreme Court
• Decided: October 7, 1916
• Docket: No. 1883
• Status: Published

Opinions

OPINION OF THE COURT.

HANNA, J.

(after stating the facts as above.) — [1] The appellee moves to strike the bill of exceptions because an order of the trial court filed upon the 4th day of December, 1915, extending the time for signing and settling the bill of exceptions to the 6th day of December, 1915, and further an order of the court granting the defendant an extension of time within which to file the transcript of record in the- Supreme Court until the 17th day of December, 1915, were improvidently entered, and not within the statutory requirements governing such ex-, tensions of time, the return day having been previously extended to the 7th day of December. The further point is made thaf the notice served upon appellee of the intention of appellant to apply to the trial judge for the signing, sealing, and settling of the bill of exceptions was not served in conformity with the statute, in that the day fixed for settling, signing, and sealing the bill of exceptions rvas only three days prior to the return day, which was December 7, 1915, and further because the notice was dated November 27, 1915, and received by the attorney for appellee on the 29th day of November, 1915, but that no transcript of record Avas filed in the cause with the clerk of the court prior to the 30th day of November, 1915, or four days prior to the date fixed for the hearing upon the application to have the bill of exceptions signed, sealed, and settled.

It appears that the several objections were raised and exceptions taken to the action of the trial court in making the orders referred to. The statutes governing the question under consideration were fully considered by this court in the case of Costilla Land & Development Co. et al. v. Robert Allen et al., 17 N. M. 343, 128 Pac. 79, and it was there pointed out that section 2 of chapter 120, Laws 1909, appearing as section 4490, Code 1915, only authorizes an extension of time within which to file a complete transcript, and under this section no authority exists for extending the time for settling and signing the bills of exceptions. By section 4 of chapter 120, S. L. 1909, appearing as section 4505, Code 1915, authority was granted the trial judge, or, in his absence from the state, any other district judge, to extend the time for settling and signing the bills of exceptions, application for which extension of time, however, must be made at least ten days prior to the return day.

There is no question in the case under consideration but that the extension of time to settle and sign the bill of exceptions was made within the ten-day period immediately preceding the return day, and the order was therefore violative of the provisions of section 4505 of the Code, for which reason the motion to strike the bill of exceptions must be granted. See Price et al. v. Toti et al., 16 N. M. 1, 113 Pac. 624.

[2] There are numerous assignments of' error, most of which depend upon the bill of exceptions, and therefore cannot be considered. Appellant, however, urges that the trial court committed error in overruling demurrers to the complaint and the reply. It is axiomatic, however, that a demurrant waives his right to object to an adverse ruling on his demurrer by proceeding to trial on the merits or by subsequently pleading over to the merits. 31 Cyc. 746; B. S. Green Co. v. Blodgett, 159 Ill. 169, 42 N. E. 176, 50 Am. St. Rep. 146.

[3] Appellant nqxt argues that plaintiff was estopped from alleging in his reply a different time of payment of the money alleged to he due him than he alleged in the complaint, and further discusses several other grounds of alleged estoppel. We fail, however, to find any assignment of error raising the question of estoppel, and therefore will not consider these alleged grounds of error.

The next proposition argued by appellant predicates error on the action of the trial court in overruling the motion of defendant to strike an amendment to plaintiff’s reply, for reasons stated in said motion. The only grounds o£ the said motion necessary to consider have to do with the alleged failure of said pleading to set forth all the matters relied upon by way of replication to the answer. In other words, the so-called amended reply sought to supplement the original reply, and did not restate all the matter contained in the first pleading filed as a reply. In Albright v. Albright et al., 21 N. M. 606, 157 Pac. 662, this court held that in every amendatory or supplemental pleading filed by a party it is necessary for him to therein restate his entire cause of action, defense, or reply, and all matters set forth in his original pleading and not carried forward into his amendatory or supplemental pleading are abandoned. Therefore there could not be error, so far as this appellant is concerned. A failure to comply with the statute would, as stated, simply operate as an abandonment of the original pleading; therefore we find no error in the matter complained of.

[4] It is next assigned as error that the court refused to make specific findings of fact and conclusions of law requested by defendant. That the court did so refuse is apparent from the record, but we cannot, in the absence of a bill of exceptions, pass upon the alleged erroneous action of the trial ■ court in this respect, because we have none of the evidence before us, and are not able to judge whether the findings of fact tendered and requested were improperly refused or not. This being true, the conclusions of law which necessarily were based upon the findings of fact cannot be passed upon by this court. and we therefore cannot sustain either contention of appellant.

In the same connection it is argued that it was the duty of the trial court to find the facts and give its conclusions of law pertinent to the case, which the trial court failed and refused to do. "We find no evidence of the failure of the trial court in this respect, except so far as it appears that the trial court refused to give the findings of fact and conclusions of law tendered by the defendant. In the case of Enderstein v. A., T. & S. F. Ry. Co., 21 N. M. 548, 157 Pac. 670, this court recently held that, where the appellant complains of the fact that the court omitted to make findings of fact, but did not call this omission so to do to the attention of the trial court, the point is not available in this court. In other words, the appellant cannot be heard to claim the benefit of an alleged error in an omission by the trial court where he did not direct the attention of the court to such omission by the necessary request that the court make the findings and conclusions called for by the statute. It is true in this case the appellant did tender certain findings of fact and conclusions of law. But these were not deemed proper to be given and were refused. No further request was made by appellant for additional findings by the trial court, and no other findings were tendered or called for. We therefore find no error in the record in this respect.

The judgment of the lower court is affirmed; and it is so ordered.

Roberts, C.J., and Parker, J., concur.