Carroll v. Byers

• Decision Date: 16 January 1894
• Docket Number: Civil 385
• Parties: BELLA A. CARROLL, Plaintiff and Appellant, v. JOHN BYERS et al., Defendants and Appellees
• Court: Arizona Supreme Court

36 P. 499

4 Ariz. 158

BELLA A. CARROLL, Plaintiff and Appellant, v. JOHN BYERS et al., Defendants and Appellees

Civil No. 385

Supreme Court of Arizona

January 16, 1894

APPEAL from a judgment of the District Court of the Third Judicia District in and for the County of Maricopa. H. C. Gooding Judge.

Reversed.

C. F Ainsworth, for Appellant.

This being a common-law action for the recovery of personal property, it was error for the court to allow the verdict rendered in favor of either party to said action and signed by only nine jurors, to stand. The act of the legislative assembly of 1891 (pp. 71, 72), in so far as it applies to the circumstances developed in this case, is unconstitutional and void. Kleinschmidt v. Dunphy, 1 Mont. 118; State v. McLean, 11 Nev. 39.

Fitch & Campbell, for Appellees.

Sloan, J. Baker, C. J., did not take part in this case. Hawkins, J. and Rouse, J., concurring.

OPINION

The facts are stated in the opinion.

SLOAN J.--

The record of this case shows that appellant, Bella A. Carroll, by complaint filed April 14, 1890, in the district court of Maricopa County, brought suit in claim and delivery against appellees, John Byers and W. T. Gray, for the possession of certain horses, wagons, and other articles of personal property. After issue was joined by appellees, the case was set for trial May 23, 1891. On the last-mentioned date the case was tried before a jury. On May 25, 1891, the jury returned a verdict for appellees. This verdict was signed by nine of the jurors only. The verdict thus signed and returned was entered upon the minutes of the court. No judgment or order for judgment was made or entered in the cause during the term at which the trial was had. On May 26, 1891, and during the term, appellant filed her motion for a new trial. This motion was not acted upon during the term; and the court seems to have held it under advisement until May 23, 1893, when an order was entered overruling the motion. On the same day the court gave judgment against appellant and her sureties upon her claim bond for the costs of the action. This judgment recited the verdict of May 25, 1891, signed by the nine jurors, and was based upon it. Appellant, in open court, gave notice of appeal from this judgment, and on June 20, 1893, made, and filed with the clerk of said district court, an affidavit in lieu of an appeal-bond.

We are asked by counsel for appellees to dismiss this appeal for the reason that it was not taken within the time prescribed by the statute. The motion for a new trial was overruled, by operation of law, at the expiration of the term at which it was made. Hand v. Ruff, 3 Ariz. 175, 24 P. 257. The contention of counsel is therefore that an appeal should have been taken from this order, and should have been perfected within twenty days after the term. As was pointed out in History Co. v. Dougherty, 3 Ariz. 387, 29 P. 649, our statutes upon the subject of appeals are somewhat indefinite. Paragraph 593 of the Revised Statutes confers, among other things, jurisdiction upon this court to review upon appeal "an order granting or refusing a new trial." Again, paragraph 846 provides: "An appeal or writ of error may be taken to the supreme court from any final judgment of the district court rendered in civil cases." Whether paragraph 593 is to be construed as giving the right of appeal directly from an order overruling a motion for a new trial or not, we think there can be no question but that the appeal from the judgment carries with it jurisdiction to review all orders affecting the judgment, including an order refusing a new trial, and that until final judgment is entered the aggrieved party is not required to take his appeal. In this case the judgment rendered by the court May 25, 1893, was a final judgment, and an appeal lay from it to this court. The notice of appeal was given during the term at which it was entered. and the affidavit in lieu of bond filed within twenty days after this term. As no bill of exceptions was taken to the action of the court in overruling the motion for a new trial, we cannot of course review this ruling, but we have still ample jurisdiction to review the judgment, and, in connection therewith, all questions properly presented upon the whole record.

We are also asked to dismiss this appeal upon the further ground, as alleged, that the affidavit in lieu of an appeal-bond does not conform to the requirements of paragraph 860 of the Revised Statutes. The affidavit was made before the probate judge of Maricopa County, as authorized, and is sufficient in form, and contains the necessary averments of facts which, if true, show appellant's inability to pay the costs. It was not contested, and hence, when filed, was all that was necessary, in addition to the notice of appeal, to give this court jurisdiction.

The judgment followed the verdict, and recited that it had been found by the concurrence of nine jurors only. Although there is no bill of exceptions in the record, the recital in the judgment that the verdict was thus found puts that fact in the record; and hence, by paragraph 827 of the Revised Statutes, no bill of exceptions was necessary to reserve an exception thereto. The record upon this appeal presents therefore, the question whether or not in this form of action unanimity is required of the jury to return a valid verdict. Section 1 of an act passed by the legislature, and approved March 17, 1891, (Sess. Laws 1891, p. 71,) provides...