On Motion for Rehearing. Appellee Fuller, hereinafter referred to as appellee, has moved for a rehearing and for grounds thereof states:
"1. Because the action of this court in reversing and remanding the cause is inconsistent with and violative of Procedural Rule 17 (Sec. 19-201 (17) N.M.Sts. 1941, Anno.).
"2. Because the opinion and decision of this court filed January 12, 1944, is grounded upon a theory entirely different from and foreign to the theory and issues upon which the case was tried in the district court, both by the trial judge and by all counsel." *Page 223
We did not deem it necessary in writing the original opinion to more than determine the question that would dispose of the case. In view of appellee's argument we have concluded to go into more detail.
The entire record was not brought to this court; only sufficient thereof is before us to determine the question of whether the court erred in the particulars set out in appellant's assignment of errors hereinafter copied.
The appellee admitted in her answer that she had made the application to purchase the property in suit from the State Tax Commission. The contents of this application became material to a decision of the case. The appellant stated to the court that the original application was not in the office of the State Tax Commission, that it had been lost, by reason of which he could not obtain it for evidence; that he had been informed that appellee's counsel was in possession of a copy of the record. The court stated that appellant could demand its production for evidence. Thereupon appellant made such demand, which was resisted upon the ground among others, that appellant had not "accounted for the original."
The court sustained appellee's objection, stating: "Before you can do anything by way of procuring a copy of it, or by way of testifying, it has got to be proven that the original was lost."
For the purpose of giving appellant time to secure evidence to prove the loss of the record, the court adjourned the hearing for two weeks. At the appointed time the trial was resumed, and appellant introduced evidence tending to prove the loss of the record. The trial court held that the evidence did not establish such fact; and that in the absence of such proof no evidence of its contents could be introduced. Thereafter the following occurred:
"Mr. Whatley: (Attorney for appellant)
"Now, we call on the defendant to produce the copies of the two applications which are in his possession and especially the application to repurchase, dated June 28, 1941, made by the defendant A.L. Fuller to the defendant New Mexico State Tax Commission for the purpose of establishing that it was represented to the State Tax Commission she was the former owner of the property and had the right to repurchase it by payment of taxes plus interest and costs.
"The Court: We had this thing up before and the court ruled the defendant would not be required to produce that until it is shown the original cannot be supplied, that it has been lost and there is no proof here to that effect.
"Mr. Whatley: We contend we have shown we have exhausted every reasonable effort to obtain the original of this application.
"The Court: There is no evidence in this case whatever that this original instrument has been lost. *Page 224
"Mr. Whatley: Then I offer to testify what I did in an effort to obtain the original.
"The Court: This case was purposely continued to enable the plaintiff to produce the necessary evidence whereby secondary evidence could be produced. * * *
* * * * * * "Mr. Whatley: Call Mr. Holt as a witness.
"The Court: Who?
"Mr. Whatley: E.L. Holt.
"Mr. Holt: I object, if the Court please, decidedly improper.
"The Court: I think so. Sustain objection.
"Mr. Whatley: If the court please, the purpose of that offer to call Mr. Holt as a witness is to show by him that under date of October 29, 1941 Mr. H. Vearle Payne, Assistant Special Tax Attorney for New Mexico State Tax Commission, wrote Mr. Holt in regard to a letter from him on October 24th, 1941, and transmitting to Mr. Holt a copy of offer to purchase, signed by Mrs. A.L. Fuller and dated May 20, 1941, and a copy of application to repurchase, signed by Mrs. A.L. Fuller and dated June 28, 1941; and that Mr. Holt has had those copies of those two applications to repurchase since the time he received that letter from Mr. Payne, and that he has them in his files today, and that that copy of the application to repurchase was sent him from the office who had the legal custody of the original documents and that it was sent to him as a result of his own request, and that that copy of that application to repurchase that property will establish that the defendant Fuller practiced fraud and misrepresentation when she made application to the State Tax Commission and offered to repurchase the property from the State Tax Commission as the former owner though knowing that she was not the former owner, in consequence of which the tax deed in this case by which she claims title is void.
"The Court: The ruling of the Court sustaining the objection will stand.
"Mr. Whatley: Plaintiff rests.
"Mr. Holt: Defendant moves for judgment in her favor as prayed in her Answer, the plaintiff having failed to prove the material allegations of his complaint, and in particular, plaintiff failed to prove that any fraud was committed by this defendant, Mrs. A.L. Fuller, in the matter of her acquiring this property by tax deed from the State of New Mexico, no evidence of fraud whatsoever on the part of the defendant has been adduced by the plaintiff.
"The Court: Motion will have to be sustained and case dismissed.
"Mr. Garland: Exception."
Thereafter judgment was entered for defendant, dismissing the case.
Appellant assigned errors as follows:
"(a) That the court erred in refusing to require the attorneys for the defendant Fuller to produce for inspection and for introduction *Page 225 in evidence in this case the copy of the application made by the defendant Fuller to the defendant New Mexico State Tax Commission to repurchase the property involved in this law suit * * *
"(b) That the court erred in requiring the plaintiff to establish by the evidence beyond a reasonable doubt that the original application made to the defendant New Mexico State Tax Commission to repurchase said property had been lost before admitting as secondary evidence the contents of said application to repurchase, because it appears conclusively from the record that the plaintiff had exhausted all reasonable means and efforts at his command and within his power to obtain said original application to repurchase, all without avail."
Upon consideration of these assignments our original opinion was written.
Section 1 of Supreme Court Rule 17, referred to in appellee's motion, is as follows:
"The Supreme Court in appeals or writs of error shall examine the record, and on the facts therein contained alone shall award a new trial, reverse or affirm the judgment of the district court, or give such other judgment as to it shall seem agreeable to law, and said Supreme Court shall not decline to pass upon any question of law or fact which may appear in any record either upon the face of the record or in the bill of exceptions because the cause was tried by the court, or judge thereof without a jury, but shall review said cause in the same manner and to the same extent as if it had been tried by a jury."
Obviously a new trial was ordered on "the facts" contained in the record alone, for which reason appellant's first ground for a rehearing must be overruled.
Regarding the second ground, we are not here concerned with the theory upon which the case was tried below. No question presented has reference to such theory. The term "theory of the case" relates to the basis of liability or grounds of defense. Cadwell v. Higginbotham, 20 N.M. 482, 151 P. 315; South Bend Mfg. Co. v. Liphart, 12 Ind. App. 185, 89 N.E. 908. The questions presented here have reference only to the rulings of the court on the demand of appellant for the production of evidence. The fact that the appellant believed it was incumbent upon him to show diligence in securing the original record before making such demand is immaterial. He demanded the production of the evidence; he called as a witness counsel who he asserted had the copies in his possession, but his demand and offer of evidence were denied because he had not established to the satisfaction of the trial court that the original was lost. This was error.
We adhere to our ruling. The motion for a rehearing should be overruled, and it is so ordered.
SADLER, C.J., and MABRY and THREET, JJ., concur.
BICKLEY, J., did not participate. *Page 226