The motion is based upon that part of the opinion in which, after reversing the judgment, we remand the cause with direction to the district court to enter judgment for appellant. It is urged that this be modified by directing the district court to grant a new trial.
The proposition is that the issue of fraud in the obtaining of the retraxit was introduced by a trial amendment, by which appellee was surprised, and that she did not have sufficient opportunity to produce evidence upon this point. It is sought to be shown by affidavits that the daughter and son-in-law of appellee, mentioned in the opinion, could not be produced at the trial, despite efforts made to that end; that, if they had been produced, they would have given evidence material to appellee's contention of fraud; and that such evidence, not formerly produced, would be available upon another trial.
[2] We do not think that we may properly consider these affidavits. By statute our disposition of a cause is to depend upon the facts contained in the record alone. App. Proc. Rule 17, § 1. Moreover, the motion, with the accompanying affidavits, amounts to an application for a new trial on the ground of newly discovered evidence. Under the procedure in this state, the matter of granting new trials for newly discovered evidence rests within the discretion of the trial court. Our province is to review its action for error.
Both parties point to State ex rel. Bujac v. District Court,28 N.M. 28, 205 P. 716, as the controlling authority. After careful consideration and an extensive review of authorities, it was there laid down, as a fundamental principle always to be applied, that "the appellate court, * * * should, upon reversal, either render the proper judgment or direct the lower court to do so, except in those *Page 611 cases where such action is prevented by the circumstances, or where legal injustice would thereby result to one of the parties." There are no circumstances here, such as the necessity for a new verdict, preventing the rendition of judgment. The question is whether rendering judgment, or directing it to be done, results in a "legal injustice" to appellee. This, as we think, must be determined from the record before us.
[3] Before proceeding to consider this question, we call attention to action which might be taken, favorable to appellee, short of directing a new trial. Frequently, on reversal of a judgment, this court has ordered the cause to be remanded, with a direction that the lower court proceed in a manner not inconsistent with the opinion. The Bujac Case, supra, is an example. As there pointed out, in such a case the court, after correction of the error, is to proceed from that point, and possesses all the power that he did possess at the same point in the original trial, including the right to entertain a motion for a new trial for newly discovered evidence. If such disposition had been made of the present appeal, it would have been the duty of the trial court, upon receiving the mandate, to vacate the conclusion of fraud and to enter judgment for appellant. Thereupon, under the authority of the Bujac Case, appellee might have made to the trial court such application for a new trial as is here presented. We are convinced that this is the most appellee could properly ask from this court, and we shall consider the proposition as though the motion were for such modification.
There are considerations on both sides of this question. Such a practice would give a party whose judgment had been reversed a chance to overcome his error in submitting his case on insufficient evidence. That would tend to promote ideal justice. Opposed to this is the great desirability of reaching an end of litigation, the presumption that all available evidence has been produced, and the additional expense to appellant of another trial. On the other hand, it is not to be overlooked that a new trial is always an evil, but is frequently unavoidable, and that the trial court, in its discretion, will not grant a new trial except to promote the ends of justice. *Page 612
Under our system of appellate procedure, it is usually only those errors committed against the losing party which are considered. Obviously errors may be, and often are, committed against the prevailing party. Of those errors he has no reason to complain so long as the judgment is wholly favorable to him. When that judgment has been reversed, why should he not have the same opportunity to complain that he would have had if he had lost?
In recognition of this imperfection in our system, we recently adopted App. Proc. Rule 15, § 2, as follows:
"In causes tried without a jury, the appellee or defendant in error may point out in his brief any errors the court may have committed against him, and this court will consider whether notwithstanding error against appellant or plaintiff in error, the judgment should be affirmed: or, because of the errors committed against appellee or defendant in error, he may be entitled to a new trial."
That rule would seem to require of the prevailing party that he preserve and present to this court error against him if he wishes to contend that its effect is to save an erroneous judgment in his favor or to entitle him to a new trial if his judgment is reversed. That course was not pursued in this case; the trial having occurred before adoption of the rule. It seems to point out a means of presenting to this court a "legal injustice" which, as said in the Bujac Case, would make it proper to remand for new trial.
In our search for "legal injustice" we should, as we think, look to the record to determine whether, if a motion for a new trial were applied for by appellee in the trial court after the correction of the error and the entry of an adverse judgment, he could succeed. If precluded by the record, then it would be not only improper, but futile, to sustain the present motion.
The record shows the following facts: Just before proceeding to trial, and on the same day, appellant offered a supplemental answer to appellee's petition in intervention. By that supplemental answer, as new matter, she set up the Arizona judgment as res adjudicata. One of appellee's counsel objected to the answer on the ground of surprise. After a number of statements by counsel, the *Page 613 objection was overruled and no exception was taken. Another of appellee's counsel then stated that they would deny the allegations of the supplemental answer on information and belief. Thereupon the trial proceeded. The issue of fraud in obtaining the retraxit, the immediate issue upon which the appeal has turned, was not introduced into the case until three days later, when appellee filed a reply to the supplemental answer setting up the fraud. There was no claim at the time that appellee was not prepared fully to prove her contentions, or that any witnesses were lacking, nor any request for time within which to produce necessary witnesses to prove the contention.
This being the record, we cannot see how appellee could prevail if given the opportunity to present a motion for a new trial on the ground of newly discovered evidence. The entire lack of diligence would prove fatal.
That being the situation, we are of opinion that appellee has no ground for relief, and that her motion must be overruled. It is so ordered.
BICKLEY, C.J., and PARKER, J., concur.