Bario v. Blumner, 1 N.M. 552 (1873)

Jan. 1873 · Supreme Court of New Mexico

1 N.M. 552

LOUIS BARIO and PRUDENCIO BENAVIDEZ v. CHARLES BLUMNER.

Judgment without Submission to Juby Ebkoneous, WnEN. — After a plea of the general issue in an action for the recovery of real property, a judgment rendered in the absence of the defendant, and without a submission to a jury, is erroneous and must be reversed.

ERROR to the district court of Dona Ana county. The opinion states the case.

8. B. Elkins and T. B. Catron, for the plaintiffs in error.

Kirby Benedict, for the defendant in error.

By Court,

Bristol, J.:

This is an action brought in the district court, in and for the third district and county of Dona Ana. The defendants appeared and pleaded the general issue. In 1868, at the June term of that court, in the absence of the defendants, and without submitting the case to a jury, the court rendered judgment in favor of the plaintiff for the recovery of the possession of the real property described in the petition, and for costs of suit. The record is before this court for review on writ of error. The court below had no authority in the premises to render judgment except upon trial and inquest by a jury and verdict found: Vide Comp. Laws of N. M., sec. 40, p. 200.

The judgment, therefore, is reversed, and the cause remanded to the court below for trial.