Copper King of Arizona v. Johnson

• Decision Date: 26 March 1904
• Docket Number: Civil 838
• Citation: Copper King of Arizona v. Johnson, 9 Ariz. 67, 76 P. 594 (Ariz. 1904)
• Parties: COPPER KING OF ARIZONA, a Corporation, Plaintiff and Appellant, v. PETER JOHNSON et al., Defendants and Appellees
• Court: Arizona Supreme Court

76 P. 594

9 Ariz. 67

COPPER KING OF ARIZONA, a Corporation, Plaintiff and Appellant, v. PETER JOHNSON et al., Defendants and Appellees

Civil No. 838

Supreme Court of Arizona

March 26, 1904

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise.Fletcher M. Doan Judge.Affirmed.

Affirmed.Memorandum, 195 U.S. 627, 49 L.Ed. 351.

The facts are stated in the opinion.

Ben Goodrich, for Appellant.

Under the rule prevailing in this country, as prescribed both by constitutional and legislative enactment, the policy of the law is to give to every man at least one fair hearing of his case upon the merits, and where a party brings himself within the principles of adjudicated cases governing new trials, he is entitled to a new trial as a matter of right, unless it be apparent that the justice of the case has been attained.Mitchell v. Bass,26 Tex. 372.

In Albright v. Warkington,31 Kan. 442, 2 P. 616, Mr Justice Brewer, while on the supreme bench of Kansas, quoting from Justice Maxwell, says the correct rule is as follows "The application may be made as a matter of right, and when a party brings himself clearly within the statute, the court has no discretion in the matter, but must grant the application."He adds: "The statute provides, it is true, that the court must be satisfied, but it also provides that it is to be satisfied by affidavit, and we can examine the affidavit as well as the trial court and determine whether it was such as ought to have satisfied, and if it ought we must hold it sufficient."It is also universally held that statutes of this character are remedial and should be liberally construed.In the case last above cited Judge Brewer says: "Indeed, to do justice to both parties, the provisions of that section should be construed in no technical way, but fairly and reasonably; every party should have his day in court."

In Harralson v. McArthur,87 Ga. 478, 13 S.E. 594, 13 L.R.A. 689, the supreme court of Georgia reversed the judgment of the lower court denying a motion for a new trial on the ground of the attorney's illness, Justice Lumpkin saying: "This providential cause would have been sufficient excuse for his absence without any leave of court."

In Goodhue v. Meyers & Co.,58 Tex. 405, the supreme court of Texas granted a new trial, based on the serious illness and absence from that cause of the defendant's attorney.

To the same effect are: Callanan v. Etna National Bank,84 Iowa 8, 50 N.W. 69;Southwestern Telegraph etc. Co. v. Jennings, (Tex. Civ. App.)51 S.W. 288;Harvey v. Wilson,44 Ind. 231;Chambers v. Fisk, 15 Tex. 335.

It may be said that the affidavit should disclose the facts constituting the merits of the plaintiff's case, but the affidavit does state that plaintiff has related the facts of its case fully and fairly to its counsel, and is advised by them that it has a good cause of action, and if there were no affidavits, the complaint is before the court for its inspection and judgment, and does state the facts, and they undoubtedly constitute a good cause of action.

In Rauer's Law etc. Co. v. Gilleran,138 Cal. 354, 71 P. 445, the court says: "It is not essential that the affidavits of merits should disclose the facts constituting the defense," and, we would add, the merits of the plaintiff's cause.

W. P. Miller, for Appellees.

It is not sufficient to state that the party has a good legal defense; the facts must be stated which show that he has a meritorious defense.Foster v. Martin,20 Tex. 119;Cochran v. Middleton,13 Tex. 275.

An affidavit of merits made by the attorney of plaintiff is merely hearsay and insufficient.Bailey v. Snaffer,29 Cal. 425.

OPINION

KENT, C.J.

On the eighth day of June, 1903, the court below set this case for trial on the seventeenth day of June, and gave notice to the agent of the plaintiff and to the plaintiff's attorney of such setting.It appears that on the seventeenth day of June, and for a long time prior thereto, such attorney had been ill and unable to attend upon the court; and of this the agent of the plaintiff had knowledge.It also appears that such attorney believed, from statements made to him by a former attorney in the case, that the condition of the calendar was such that the case could not be reached for trial on the day set, and that the attorney had no one in attendance upon the court on said day to represent him.The case was, however, reached on the calendar that day, and was called for trial.No one appearing for the plaintiff, the defendants, insisting upon an immediate trial, upon the testimony introduced by them, obtained an affirmative judgment against the plaintiff on their cross-complaint.The plaintiff moved to set aside the judgment and for a new trial, and, the motion being denied, appeals to this court, and assigns as error the denial of such motion on the ground set forth in such motion, "to wit, the severe illness and inability of its attorney to attend said trial."

Upon the facts as they are before us, if nothing more appeared in the record, we are inclined to think that there was sufficient reason shown to justify the trial court in giving the plaintiff its day in court, and granting to it a new trial.Upon the facts alone, however, which we do not think it necessary to set forth in extenso, we doubt if we should be justified in saying that the action of the trial court in denying the motion for a new trial should be set aside.Circumstances often surround the setting and trial of a case, properly cognizable by the trial judge, which may not always appear in the record, and which may properly have an influence in the determination of a motion of this character.The appellate court should, therefore, in its review of such action, recognize that such matters must rest largely in the sound discretion of the trial court, and upon such review should not disturb such...