Bryan v. Inspiration Consolidated Copper Co.

• Decision Date: 03 January 1925
• Docket Number: Civil 2165
• Citation: 27 Ariz. 188,231 P. 1091
• Parties: E. R. BRYAN and JULIA BRYAN, Appellants, v. INSPIRATION CONSOLIDATED COPPER COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

231 P. 1091

27 Ariz. 188

E. R. BRYAN and JULIA BRYAN, Appellants, v. INSPIRATION CONSOLIDATED COPPER COMPANY, a Corporation, Appellee

Civil No. 2165

Supreme Court of Arizona

January 3, 1925

APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge. Affirmed.

Messrs Baker & Whitney and Messrs. Jennings & Strouse, for Appellants.

Messrs Rice & Mathews, for Appellee.

OPINION

McALISTER, C. J.

Including a rehearing this case is before the court for the third time. See 20 Ariz. 485, 181 P. 577, and 23 Ariz. 541 205 P. 904. It is an action under the Employers' Liability Law (Civ. Code 1913, pars. 3153-3179) to recover damages from the Inspiration Consolidated Copper Company for the death of Allen Bryan, an unmarried man. The suit was instituted by his administrator, Riley Bryan; but upon motion of the latter E. R. Bryan and Julia Bryan, parents of the deceased, were substituted as plaintiffs, and they won a verdict for $10,000 upon which judgment was rendered June 5, 1922. A motion for a new trial based upon twelve different grounds was filed within the proper time, but the hearing thereon was continued by order of the court until September 11, 1922, when it was argued and ordered submitted upon the briefs to be filed within certain specified dates. On December 7, 1922, this motion was granted, but the court did not state or specify upon which of the alleged grounds its action was based. It is from this order the plaintiffs appeal.

Only two errors are assigned. The first attacks the jurisdiction of the court to grant the motion for a new trial upon these two grounds: First, that the order was not made within six months after the rendition of the judgment; second, that the motion was not continued by proper orders entered in the case. The second assignment bases error upon the order granting the motion for a new trial, and gives thirteen different reasons why such action was erroneous. The first twelve of these merely negative the grounds of appellee's motion, and the thirteenth is a general statement that the record discloses no ground upon which a new trial could be granted.

In support of the contention that jurisdiction to grant a new trial is lost at the expiration of six months from the rendition of judgment, appellants cite the following provisions of the Civil Code of 1913:

"599. Any court of record in this state may, in its discretion, permit an answer or reply to be made or other act to be done after the time limited therefor by law, or by its order may enlarge such time, but nothing in this section shall be held to authorize an extension of the time within which an appeal may be taken or perfected in a civil action.

"600. The court may, any time within six months after the making or entry of any judgment, order or other proceeding, relieve a party from any such judgment, order, or other proceeding taken against him though his mistake, inadvertence, surprise or excusable neglect; or may, for good cause shown, modify or set aside its judgments, orders or proceedings.

"1233. An appeal may be taken from a final judgment of the superior court in a civil action, or special proceeding commenced in such court, at any time within six months after the rendition of such judgment, and from any other judgment or order at any time within sixty days after the making of such order.

"1267. The Supreme Court, or any judge thereof may, for good cause shown, enlarge the time within which any of the things provided in this chapter may be done, but the time for taking an appeal shall in no case be extended."

They point out further that this court held in Leeker v. Leeker, 23 Ariz. 170, 202 P. 397, that upon the expiration of six months from the rendition of judgment jurisdiction to grant a motion to vacate the judgment is lost, and urge that in consequence of this holding it follows that jurisdiction to grant a new trial upon the lapse of a like period of time is also lost, because, it is said, there is no distinction between vacating and setting aside a judgment and granting a new trial, since the latter also effects a vacation of the judgment. Granting a new trial, it is true, does result in the judgment being set aside, but in Smith v. City of Nogales, 24 Ariz. 557, 211 P. 592, this court, in deciding whether a motion for a new trial must be passed upon within six months from the rendition of judgment, held that it did not, using this language:

"In proceedings under paragraph 584, the time within which the court must pass upon the motion is not limited, providing it is kept alive by continuances or stipulations as provided in paragraph 591, supra."

It was also specifically pointed out in that opinion that what was said in the Leeker case as to the limitation of time allowed the court to act upon a motion made under paragraph 600 of the Civil Code had no application to a motion for new trial based upon paragraph 584 of the same code. This is undoubtedly the correct view, and it may be just as truly said that the six months' period in which relief may be sought under either paragraphs 599 or 1267, supra, have no bearing upon a motion for a new trial, the provisions governing which, chapter 19, title 6, Civil Code of 1913 (pars. 584-598), applying to it exclusively and containing no language expressing or implying such a limitation.

Neither does the fact that an appeal from a final judgment may be taken only within six months from the rendition thereof deprive the court of jurisdiction to pass upon a motion for a new trial after that period has elapsed, provided the motion has been kept alive by proper continuances, because the filing of such a motion has the effect of suspending the finality of the judgment, and, so long as it is alive and undisposed of, final judgment, within the meaning of paragraph 1233, supra, has not been, and in fact cannot be rendered. "The seasonable filing and service of a motion for new trial," said the court in Wittler-Corbin Machinery Co. v. Martin et al., 47 Wash. 123, 91 P. 629, "suspends judgment to such an extent that it is not final, until the motion is denied." In Watson v. Mayberry, 15 Utah 265, 49 P. 479, the Supreme Court of Utah in discussing this question said:

"A judgment terminating the litigation between the parties in the court rendering it is final. The litigation is not terminated while a motion for a new trial, made within the time given by law, may be lawfully decided. Until the order granting or overruling the motion is made, it cannot be known that the judgment is final. If the motion is allowed, the litigation may continue. If it is overruled, the litigation is terminated, and the judgment then becomes final."

In New York, C. & St. L. Ry. Co. v. Doane, 105 Ind. 92, 4 N.E. 419, the Supreme Court of Indiana said:

"There was no final judgment within the meaning of the statute governing appeals until the ruling denying the motion for a new trial. . . . A motion for a new trial is not a collateral one, but is one directly connected with the judgment, and is essential to present for review errors occurring on the trial, and, so long as it remains undisposed of, there can be no final judgment within the meaning of the statute regulating appeals. A pending motion for a new trial keeps the cause in the trial court, provided, of course, that the motion was seasonably filed."

In McClellan et al. v. Wood, 78 Fla. 407, 83 So. 295, the Supreme Court of Florida said:

"A trial of an action at law is not concluded where a motion for new trial is duly made therein, until the motion for new trial is finally disposed of."

From this it follows necessarily that when a motion for a new trial is filed the six months' period in which an appeal may be taken begins to run only after the judgment has become final by a denial of the motion. Such is the great weight of authority. In Snow v. Rich, 22 Utah 123, 61 P. 336, the Supreme Court of Utah said that it had repeatedly held that:

"An appeal taken and perfected within six months from the date of overruling the motion for a new trial is taken in time."

In the City of Lincoln v. First Nat. Bank of Lincoln, 64 Neb. 725, 90 N.W. 874, the Supreme Court of that state said:

"We conclude, therefore, that in a trial of a law action, where judgment is rendered before the motion for a new trial is ruled upon, and the motion is seasonably presented, the time within which error proceedings may be begun commences to run when the ruling is had upon such motion."

To the same effect see the following: Blaemire et al. v. Barnes, 173 Ind. 657, 91 N.E. 232; Willis v. Witt (Ky.), 124 S.W. 362; Durbridge v. State, 117 La. 841, 42 So. 337; Chilcot v. Globe Nav. Co., 49 Wash. 302, 95 P. 264; Snow v. Rich, supra; Aspen Mining & Smelting Co. v. Billings, 150 U.S. 31, 37 L.Ed. 986, 14 S.Ct. 4 (see, also, Rose's U.S. Notes); Florence Cotton & Iron Co. v. Field, 104 Ala. 471, 16 So. 538; Walter v. Scofield, 167 Mo. 537, 67 S.W. 276; Northwestern Mutual Life Ins. Co. v. Barbour, 96 Ky. 128, 28 S.W. 156; Pearce v. Strickler, 9 N.M. 46, 49 P. 727; Doorley v. Buford & George Mfg. Co., 5 Okl. 594, 49 P. 936; Louisville & N.R. Co. et al. v. Ray, 124 Tenn. 16, Ann. Cas. 1912D, 910, 134 S.W. 858; McClellan et al. v. wood, supra; Wittler-Corbin Machinery Co. v. Martin et al., supra.

To hold that one asking for a new trial should proceed with his appeal as though the judgment had become final by the denial of the motion or the failure to file one, notwithstanding he cannot know previous to a ruling on his motion whether it will be granted and, therefore, whether the judgment as rendered is final, would be to require, not merely the expenditure of unnecessary labor and funds, but the doing of a wholly useless thing in all case...