By Court,
Johnson, J. :This is an action of ejectment tried at February term, 1869, of the district court for Santa Fe county, in which judgment was entered in favor of defendant in error for possession of the property in his petition described, and forty dollars damages, etc., and brought to this court on appeal by Meyer Kayser, real defendant in the court below.
I deem it sufficient in this case to consider: 1. Whether the admission in evidence by the court below of the execution in Spiegelberg v. Ivers, and to which admission plaintiffs in error excepted, is reviewable by this court; and, 2. Whether the instructions by the court below properly submitted to the jury the matter in dispute. Revised Statutes, c. 27, secs. 21 and 22, apply to all actions at law triable in the district courts. The first of these sections requires the party wishing to use on the trial instruments of writing, to file the originals or copies of the same; and the latter (sec. 22) says: “If any papers shall be referred to, and the originals or copies not filed as above required, they shall not be used in the trial, unless the party offering them shall give some satisfactory reason why the same were not filed.”
The legislature certainly did not intend that either of the parties should judge of the satisfactoriness of the reason why such paper was not filed, as that would render suits interminable, but left the matter to the discretion of the court trying the cause; and matters of pure discretion are not reviewable on appeal.
In my opinion the question to be determined by the jury was not fully presented by the instructions of the court. Iguoring the evidence of Felipe Delgado as to the payment of money, in his presence, by John Itobertson to Ivers for the property in question, they direct the attention of the jury to the fact that a subscribing witness to the deed of Ivers to Robertson did not see Robertson, at the time of signing the deed, pay any money to Ivers, and connecting this fact or “ circumstance,” with the assumption o£ the court that, long after the execution of said deed by Ivers to Robertson, Ivers still continued to occupy, use, and manage the property as his own. These facts, if satisfactorily proved, are strong evidence that the sale to Robertson by Ivers was fraudulent.
Then, again, the instructions presented this assumption to the jury: “ Had the transaction been an honest and fair transaction, Robertson could have proved if the transaction was an honest one, by some person, that in fact the money was paid by him to Ivers, and that he was in fact in possession of the property claimed as his, but no such proof is produced,” which is an encroachment upon the province of the jury to judge the fact; and the tendency of such instructions, as a whole, was suggestive of the verdict expected to be found by the jury.
The judgment of the court below is reversed, at appellee’s cost, and new trial granted.