DISSENTING OPINION.
HANNA, J.-I find • it impossible to agree that the majority opinion in this case correctly states the law in holding that in cases tried before the court the erroneous admission of testimony will afford no ground for reversal, unless it is apparent that the court considered such testimony in deciding the case. Nor can I agree that the principle of law, even though correctly stated, is applicable to the facts in this case. My objection to the principle, as stated, is that it is not sufficiently clear that the application of the rule is not to be made in any case-where evidence has been erroneously admitted, unless it plainly appears that such erroneous admission of evidence was harmless or without prejudice to the party complaining. The Territorial supreme court, in the case of Lynch vs. Grayson, 5 N. M. 487, upon which is based the ruling of the same court in the case of Radcliffe vs. Chaves, 15 N. M. 258, correctly stated the ruling as it is followed by those jurisdictions adhering thereto, and qualified the principle as I believe it should be qualified, if given force and effect. The court saying, in the case of Lynch vs. Grayson:
“And in a trial by a court the admission of incompetent evidence at a trial below is no cause for reversal if it could not possibly have prejudiced the other party.”
When such condition appears, it may be presumed, perhaps, that the trial court did not consider the objectionable testimony in deciding the case, although such presumption might be seriousty questioned. It has been said that no rule is better settled than that where error is shown injury is presumed, unless the contrary appears affirmatively, Hayne New Trial and Appeal, Sec. 287.
This is not the ground of my objection to the rule as enunciated, however, except in so far as it indicates that the rule is not based upon a presumption that the court clid not consider the. inadmissable evidence, but rather that the true test of the rule is, whether or not the error complained of was harmless. I am aware that the grounds set out in the opinion may be so considered to indicate that in the opinion of the court the error was harmless, and the opinion would thereby qualify the rule, as I contend it should be qualified. But this does not make the statement of the principle less objectionable, as the qualification does not -therein appear, and must be arrived at by considering the application of the principle to the facts of' the case.'
The authorities which I have examined upon this point, without exception, so far as I have found, deal with the admission of evidence where the question arose during the stress of the trial, and the trial judge was called upon to pass upon the question relating to the admission of evidence without time for reflection or stqdy, and it subsequently developing that the court had erred for technical reasons, and that such error was not prejudicial, the appellate court has, in effect, said that the evidence could not be considered because inadmissible, -but the party complaining not having been harmed by its admission, the-verdict or judgment would not be disturbed.
As stated in 2 B. O. L., Sec. 205, at page 250, where a large number of these cases are quoted in a note to the text:
“The broadness of the statement of the harmless error doctrine, however, necessarily leaves room for dispute about the prejudicial effect of a certain species of evidence, and no hard and fast rule can be laid down as to what errors can be deemed harmless.”
It seems to me, however, that a sound test as to-whether the admission of the evidence was in fact harmful, might rest upon the inquiry as to whether or not the-objectionable evidence was given weight or taken into consideration in making findings or rendering judgment. Ordinarily, where the court had simply ruled on the admission of the objectionable evidence, in advance of its admission, it would be naturally presumed that the court had subsequently disregarded it. But in this case after the court had ruled upon the objectionable evidence, and at the dose ■of plaintiff’s case, the defendant moved to strike such evidence, renewing his objections as set out when objection was urged to its admission. The court, upon consideration of this testimony, refused to strike the evidence. This would indicate that the court did consider the inadmissable evidence. The evidence in question, it is contended by appellant; went to show that some of the services rendered by the attornej'' for appellee had been actually rendered dor co-defendants of Williams, and that therefore Williams was not liable for the services so rendered.
The question before us now, as was before the district •court, is to determine whether the fee claimed by the attorney was a reasonable fee, for the services rendered, the burden being upon the attorney to prove- such services, as well as the reasonableness of the fee. If it be true that the services rendered were performed for one of the co-defendants, the other defendant, appellant here, not being liable therefore, and such services have been taken into ■consideration in arriving at the amount of the judgment i.n this case, the evidence.in question cannot be said to be harmless. This was not a case where all the evidence was ■simply cumulative, but is a case where all the evidence taken together upon the question of services performed, would necessarily be considered in making up the gross amount allowed and given as a judgment in the case, and therefore it cannot be said that it is not apparent that the ■court considered such testimony. Nor do I agree that the hypothetical questions propounded to the witness who testified as to the value of the services, did not include ■any of the services rendered by said attorney for the co-defendant, Kerlee.
It is my conclusion, after a careful examination of numerous authorities, and I think this is borne out by the ■opinion of the United States supreme court in the case of Grayson vs. Lynch, reported in 41 L. Ed. 230, that the real reason why the appellate court will not set aside the findings or the judgment and order a new trial for the admission of incompetent evidence, is that there is other competent evidence to support the conclusion arrived at, aside from tire question that the incompetent evidence was harmless, and I do not think that any case where the conditions’ existed should be sustained unless it does clearly appear that there is competent evidence to support the conclusion. This being true, the rale is not applicable, in my opinion,, to the present case, because, as stated, this evidence with all the other evidence as to services must have been considered together, as making up the amount found by the trial court to be due the attorney for the services performed. It is not a question of whether the attorney was entitled to the fee-allowed for performing the other services, outside of the-services to ICerlee, on the ground that you can disregard this evidence because of other evidence remaining to prove that he was entitled to the same fee. All the evidence-taken as a whole was found to justify the fee of $500, allowed, and if you are compelled to disregard the testimony as to a portion of the services, he loses his right to-recover the amount of the judgment.
Some courts have gone so far as to hold that in cases of trial by the court without a jury, the admission of. illegal evidence raises a presumption of injury, and requires a reversal of judgment, unless^ the remaining evidence is without conflict, and is sufficient to support the judgment without giving consideration to the objectionable evidence. First National Bank, Talladego vs. Chaffin, 118 Ala. 246, 24 So. 80; Miller vs. Mayer, 124 Ala. 434; 26 So. 892.
Other cases to the same effect could be cited, but it is unnecessary and unimportant to do so.
In this ease the remaining evidence is not without conflict, and in my opinion, is not sufficient to support the-judgment, although my principal objection to the rule as announced by this court, is upon the other grounds stated.
The evidence in this record discloses that the attorney prepared and filed a complaint, held frequent conferences with appellee relative to the suit, made certain interested parties defendant, and investigated the records in the recorder’s office for the purpose of determining other liens that might exist, briefed some legal questions likely to arise on the trial of the case, examined certain mortgages- and notes prepared by other attorneys after the case had been settled by tbe parties, and contended that these services were worth $1,000.00, and upwards, and has been given a judgment for $500.00, which in my opinon, is clearly excessive in view of all the circumstances of the case as disclosed by the record, and is so clearly so as to closely approximate oppression and justify the reversal of the judgment, which, in my opinion, is the disposition that should be made of this case.