Schofield v. Territory of New Mexico ex rel. American Valley Co.

Citations

• 9 N.M. 526
• 9 Gild. 526

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>•Attachment — Pleading—Waiver—Damages—Mitigation—Live Stock —Assignment of Error — Bill of Exceptions — Review—Verdict— Special Findings — New Trial — Statutes—Repeal—Procedure Under Levy Act, Laws 1889, c. 54 — Remittitur.—1. On trials in attachment suits, when' a demurrer to a portion of the answer is sustained, and a part of the answer is stricken out and the defendants except, and answer over, omitting the objectionable paragraph, they save their right to have the ruling striking out such part of the answer reviewed on final appeal of the case.</p> <p>■2. In suits brought to recover for actual damages done by the attachment of live stock, after the writ of attachment has been traversed • and dissolved, where exemplary damages are not claimed, the defendant can not prove, in mitigation of the actual damages sustained, that he had probable cause to believe the truth of the statements contained in the affidavit on which the writ of attachment issued.</p> <p>'3. Assignments that error was committed in admitting “illegal and improper testimony” and in “excluding the introduction of legal and proper evidence,” are too general under rule XIV of the supreme court, for us to consider.</p> <p>4. It is no error to allow evidence to go to the jury showing the condition and value of live stock at times other than the day of their release, as injuries may have been sustained by reason of the attachment which are not immediately apparent; nor is there any error in allowing evidence to go to the jury showing what cattle were worth when located ■on and familiar with a range.</p> <p>5. In civil cases since the passage of the code of civil procedure in 1897, it is not necessary to have the instructions of the court, the decision of the judge granting or refusing them, or the motion for the new trial, incorporated in a bill of exceptions, when they are in the record this court can consider them.</p> <p>6. The supreme court sits only to correct error