Chenoweth v. Prewett

• Decision Date: 11 December 1915
• Docket Number: Civil 1495
• Citation: 17 Ariz. 400,153 P. 420
• Parties: H. K. CHENOWETH et al., Appellants, v. E. W. PREWETT and C. T. GUSEMAN, Appellees
• Court: Arizona Supreme Court

153 P. 420

17 Ariz. 400

H. K. CHENOWETH et al., Appellants, v. E. W. PREWETT and C. T. GUSEMAN, Appellees

Civil No. 1495

Supreme Court of Arizona

December 11, 1915

APPEAL from a judgment of the Superior Court of the County of Santa Cruz. W. A. O'Connor, Judge. Reversed and remanded, with directions.

Mr Eugene S. Ives, Mr. Gerald Jones and Mr. S. F. Noon, for appellants.

Mr. E R. Purdum and Mr. A. H. De Riemer, for Appellees.

OPINION

ROSS, C. J.

This cause is here upon an agreed statement of the case and the proceedings therein, as provided by paragraph 1257 of the Civil Code. Judgment in favor of the defendants-appellants was entered in the lower court on February 19, 1915. The plaintiffs-appellees on February 27th filed their motion for a new trial, and on March 17th an amendment to said motion on which date the motion was argued and submitted. On April 19th the court granted a new trial. The defendants prosecute this appeal from the order granting a new trial, and allege that the court committed error in two respects: First, in granting a new trial after 20 days from the rendition of the judgment, said motion not having been continued by order of the court or by stipulation; and, second, because the plaintiffs were not entitled to a new trial on the showing made.

To sustain their position on the first point raised appellants rely upon paragraph 591 of the Revised Statutes, which reads as follows:

"All motions for new trial in arrest of judgment, or to set aside a judgment shall be determined within twenty days after the rendition of judgment, and if not so determined shall be deemed denied unless continued by order of the court, or by stipulation."

Fifty-eight days had intervened between the dates of entering judgment and the granting of new trial. But one minute entry appears in the statement of the case, which was made on March 17, 1915, 24days after judgment was entered. The wording of that entry is as follows:

"The said motion for a new trial was argued by counsel for the respective parties and submitted to the court for its decision and the motion was by court taken under advisement."

At the time this order was made the motion for a new trial was "deemed denied." Had this order been made within 20 days after the rendition of the judgment, it probably would have been construed as a sufficient order continuing the hearing upon the motion, but, having been made after the 20-day limit, it was upon a matter already decided by the law. Bigler v. Welker, 16 Ariz. 44, 141 P. 124.

An order of the court denying the motion after the 20 days fixed by statute would be a useless thing, as it would not affect one way or another what the law had already declared accomplished, and, if the motion was denied in law, an order by the court granting the motion would be a violation of law and equally ineffective. We are of the opinion, unless the court retains jurisdiction by proper orders of continuance or by stipulation of the parties, it is without power to hear and determine the motion after the 20 day's lapse of time from the rendition of judgment.

The history of paragraph 591 seems to indicate that the purpose of the legislature was to fix a limit beyond which a hearing thereon could not be had, except by a strict observance of its provisions. During territorial days we had terms of court. In most of the counties they were limited to two terms a year. It was found under that system that the losing party could by filing a motion for a new trial often effect the postponement of the fruits of the judgment for as long as 6 months if the court, for any reason, failed to act upon the same before the adjournment of the term. Accordingly, in 1891, by Act No. 49, section 1, of the Session Laws, it was provided:

"In case there shall be no ruling on said motion for a new trial during the term at which it was filed, then said motion shall be deemed to have been denied. . . ."

In the revision of the laws of the territory of Arizona in 1901 this statute was amended and carried forward to read as follows:

"1479. All motions for new trials in arrest of judgment or to set aside a judgment shall be determined at the term of the court at which the motion shall be made, unless continued for good cause."

Our Constitution abolished terms of courts, and the legislature, to meet the evil provided against by the acts of 1891 and 1901, by paragraph 591 placed a definite certain limit of "twenty days after the rendition of judgment" within which a motion for a new trial could be heard and determined, but not afterward, "unless continued by order of the court or by stipulation."

Three grounds were set forth in the motion for a new trial by appellees, but the one relied upon and considered by the court in granting the motion was in the following words:

"Material evidence which, with reasonable diligence, could not have been found and produced at the trial."

The cause here stated for a new trial is not one of the causes...