Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1920-03-24
LIST OF SUPRE M E
COURT DECISIONS

Maria C. Sais by Victor Sais, her
next friend. appellant: VS.. The City
Electric company, etc, appellee,
Bernalillo county. no. 1911.
This is an action in tort for
damages alleged to have been SUI
fered by appellant on account of in
juries received by her when a street
car Of the appellee company col
lided with the automobile in which
appellant was riding.
The complaint set forth the facts
Of the alleged mishap and specified
four grounds of negligence on the
part of appellee. The appellee
filed general denial, and by way
of so called new matter alleged
facts tending to show. in substance,
that the injuries afflicted upon the
appellant were caused by her
father, her next friend in this ac-
ton, in operating the said automo-
bile in q negligent, careless and un-
sale manner The appellant filed
to plead by way of reply or other
wise, to the so-called new matter in
the answer and a certificate of de-
fault was filed by the appellee. The
appellant moved to set aside the
certificate of default and rendered
a reply, but the court denied the
motion and granted appellee's mo-
ton for judgment on the pleadings
and dismissed the cause, from
which Judgment this appeal is pros
cuted.
Judgment of the court below re-
versed with instructions to set
aside the dismissal of the judg-
ment.
Syllabus:
/. In actions for personal in
juries alleged to have. resulted
from defendants negligence, the
defendant my prove, under his gem
eral denial, that the wrong was
caused by the negligence of third
persons. Held, that, therefore, an
answer denying the negligence and
setting up the negligence of third
parties as the proXimate cause OF
the injury, was argumentatiye and
not new matter and consequently
no reply thereto was necessary.
Held, further, that rendition of
Judgment on the pleadings was
erroneous in that issue was Joined
by the general denial.
2. The court will notice, without
exception or presentation, jurisdic-
tional and other matters which
may render a case inherently and
fatally defective and require a re-
versal.
opinion by Chief Justice Parker,
Justice Roberts concurrlng.
MIR. Justice Reynolds heard the
case below and did not participate.
William d. Kershner, appellant
VS.. The Trinidad Milling and MIN
ing company, ct al. appellees. Taos
county. No. 1886.
This is on a motion to svike
from the files all of the. assign
ment of errors Of appellant as be-
ing insufficient. ..
Motion to strike assignment of
errors, denied.
Syllabus:
/. Assignments of error exam
med and held sufficient. ...
2. A general rule as to the form
and sufficiency of assignments OF
error is stated as follows: % Each
error complained of must be sepa-
TaIGlN IJOllltGu ObNr ~ N'NNii $1,000
ment must specifically refer to some
action or ruling of the lower court
which is sought to review CD each
act or ruling of the court occurring
either prior or subsequent to the
final Judgment, and which 1t is
sought to review, must be separate
w and, specifically pointed out; C4)
an assignment attacking the juds-
ment presents only such error as.
inheres in the Judgment itself; 90
reasons why any given action OF the
trial court is deemed to be enron
cons are in the nature Of argument,
and are not only not required IN an
assignment of error but are entire
ly improper. and should be found
only in the brief.
3. A motion to strike from the
files assignments of error IS not
a proper remedy to search the rec
ord and to present the question as
to whether error has been properly
saved in the court below. or is oth-
erwise unavailable
opinion by Parker, G. j., Ray
nolds, j., concurring. Roberts D."
dissenting, ..s..
a.. fif11nG and