OPINION OF THE COURT Appellant sued appellee, on November 16, 1915, in ejectment, for two small parcels of land situated within the New Mexico portion of the Sangre de Cristo Grant. Appellee, by answer, denied the allegations of the complaint, set up title in himself by adverse possession, and prayed that such title be quieted as against appellant's adverse claims. Appellant, by reply, denied the affirmative allegations of the answer, and, by specific allegations, set up a certain judgment rendered in the district court of Santa Fe county, November 17, 1905, on change of venue from Taos county, as a former adverse adjudication of appellee's claim to title or right of possession.
At the trial, appellant offered in evidence the judgment roll in the former case. The court refused to receive it, and appellant was compelled to rest its case without such proof. Thereupon appellee's motion for a directed verdict against appellant on the ejectment issue was sustained.
While numerous specific errors have been assigned, the decision of the appeal, as counsel agree, depends upon the correctness of the ruling of the trial court, excluding the judgment roll.
[1] It is not questioned that Jahren v. Butler, 20 N.M. 119,147 P. 280, laid down the correct rule, in quoting from 24 Cyc. 765, as follows:
"A judgment of a court of competent jurisdiction, upon the merits of a controversy, is conclusive between the parties and those in privity with them, upon every question of fact directly in issue, determined in the action."
[2] Appellee does not question the proof that he was a party plaintiff in the former case, nor that appellant's *Page 358 predecessor in interest was a party defendant therein. He does not question that the particular small tracts involved in the case at bar are included within the outboundaries of the larger tract, the title to which was, in the earlier case, quieted in appellant's predecessor in interest as against the claims of appellee. He does not question that the judgment of 1905, by its terms, did assume to quiet the title to a large tract, including the lands here in question, as against any claim of appellee individually and in severalty thereto. He does contend, however, that such was not the issue in the former case.
The pleading, entitled "Amended Declaration," and sometimes referred to as the "Second Amended Complaint," alleged that numerous plaintiffs, including appellee, were on February 1, 1903, and continuously thereafter, as tenants in common, entitled to the immediate possession of certain described land (the New Mexico portion of the Sangre de Cristo Grant), that on said date the defendants, including appellant's predecessor in interest, entered, unlawfully withheld, and still unlawfully withheld, the same from the plaintiffs; alleged adverse possession of such lands by the plaintiffs for the statutory period; and prayed for process, for judgment, and to be let into possession. So it is contended by appellee the only issue was the right of possession of all the plaintiffs, as tenants in common, of all the land, and that the individual claims of the plaintiffs to separate holdings were not involved.
But appellant points to the second amended answer which, besides denying essential allegations of the "amended declaration," made numerous allegations of new matter upon which it based a claim for affirmative relief, and prayed for a decree "that it is the owner and in the possession * * of all of the land described in said complaint, and each and every portion thereof, free and clear from the claims of any of the plaintiffs * * * and that the title to said land be quieted and confirmed in said the Costilla Land Investment Company, and that the plaintiffs herein, and each and every of them, * * * either individually or collectively, be restrained and forever enjoined from *Page 359 setting up, asserting, claiming, suing for, or demanding any right, title, estate, claim, or demand in or to the land described in said complaint, or any part or portion thereof. * * *"
Among the allegations of new matter supporting the said prayer is this:
"* * * That the defendant is now the owner and in the possession and entitled to the possession of all the land in said complaint described, and each and every part and portion thereof, save and except that * * * the plaintiffs herein, or certain ones of them, have taken unlawful possession of small parts and portions of said land, holding the same in severalty and not in common, and wrongfully withholding the possession thereof from * * * the Costilla Land Investment Company as owner thereof."
Replying to this allegation, plaintiff said:
"* * * They deny that the defendant, the Costilla Land Investment Company, is now the owner, or entitled to the possession or in the possession, of said premises or of any portion thereof, except as alleged in plaintiffs' complaint; and plaintiffs further deny that they or any of them have taken unlawful possession of any part or portion of said premises, and they deny that they wrongfully withhold the possession of said premises or any portion thereof from the defendants or from any of them."
So appellant contends that the issue made by the answer and reply included the several holdings, rights, and claims of the plaintiffs, and supports the judgment quieting title as against them.
[3] Appellee contends that the attempt by the answer to inject, and by the decree to adjudicate, the issues as to the holdings or claims of the plaintiffs in severalty, is contrary to the provisions of our Code as to joinder of parties and of causes. Be that as it may, the issues seem to have been presented and decided without objection. The judgment, however erroneous it may have been, is a final judgment, not appealed from. The procedural objections now urged are among those for which demurrer lies. Code 1915, § 4110. They are among those which, not being raised, are to be deemed waived. Code 1915, § 4114.
It seems plain, therefore, that the exclusion of the judgment roll cannot be sustained on the ground that the *Page 360 issue formerly litigated was not the same as that presented in the case at bar.
[4] It is contended that the judgment roll was properly excluded because it appears therefrom that the decree was based upon a stipulation of counsel and not upon the "evidence and law governing the case." It is particularly urged that the stipulation, which was not produced because missing from the files, "did in fact eliminate * * * from the terms of the judgment * * * the particular tract * * * involved in the case at bar"; such fact being, it is claimed, shown by the judgment roll.
From the records offered, it appears that the decree was arrived at after several days spent in the trial of the cause. It recites:
"Now at this day, this cause coming on to be heard upon the stipulation and agreement of the parties hereto made in open court and the evidence herein, and the court having heard the evidence and now being fully advised, it is hereby found, considered, adjudged, and decreed that the parties hereto consent that the jury may be discharged and jury trial is hereby waived, and it is agreed that this cause may be tried to the judge of this court and without the intervention of a jury, and tried upon the evidence taken and the stipulation made by the parties in open court."
There appears also in the decree the following reference to the stipulation:
"And from the findings that the land belongs to the defendant company, the following part is excepted under the agreement of the parties in open court, copy of which is filed in this cause, and said defendant company is ordered to convey the following described property to the plaintiffs thereof, or to such person or persons as they shall designate, to wit: [Description of land not including the parcels involved in the case at bar.]"
It seems, therefore, that the law and the facts were adjudged, and included those involved in the present case. To what extent the judgment might have been different if the parties had not agreed would seem to be immaterial. The decree is complete in itself, and needs no explanation from the stipulation. Whether it could be impeached by the production of that document we need not decide. We cannot see how the failure to produce the stipulation can be considered an impeachment of the decree or render it inadmissible in evidence. There is nothing in the record *Page 361 that seems to justify the contention that the stipulation, if produced, would have shown an agreement to exclude the land here involved from the terms of the decree. Indeed, it is clearly inferable from the foregoing quotation that such lands as the parties had agreed to exclude were excluded in fact.
While appellee seems to have some other points in mind in support of the judgment, they are not made plain by references to the transcript, nor supported by argument or authority. They do not appear on their face to be well taken, and do not seem to be seriously relied upon. Therefore we do not notice them.
We conclude that the trial court erred in excluding the judgment roll.
[5] Appellant contends that there is no occasion for a new trial of this cause, and that it should be disposed of on the merits on this appeal. The argument is that the judgment roll, if introduced in evidence, together with the documentary proof of appellant's succession in interest to the Costilla Land Investment Company, whose title was formerly quieted, would be conclusive of its right to possession and to recover in ejectment, and conclusive as against appellee's claim of adverse possession, since the present suit was commenced one day before the expiration of ten years from the entry of the earlier decree. So, it is argued, upon a new trial, and upon the introduction of the evidence erroneously excluded, appellant would be entitled to a directed verdict. The argument is not without force. Yet we doubt our right so to dispose of the appeal. The cause being one in ejectment, the parties are entitled to jury trial. This they have not waived. While the function of a jury on a retrial would seem to be a formal one, our attention is not directed to any authority for a judgment in ejectment, except upon the jury's verdict, unless a jury is waived.
For the error pointed out, the judgment must be reversed, and the cause remanded for new trial. It is so ordered.
PARKER, C.J., and BICKLEY, J., concur. *Page 362
ON MOTION FOR REHEARING