Daggs v. Howard Sheep Co.

• Decision Date: 22 December 1914
• Docket Number: Civil 1287
• Citation: 145 P. 140,16 Ariz. 283
• Parties: J. F. DAGGS, Appellant, v. HOWARD SHEEP COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

145 P. 140

16 Ariz. 283

J. F. DAGGS, Appellant, v. HOWARD SHEEP COMPANY, a Corporation, Appellee

Civil No. 1287

Supreme Court of Arizona

December 22, 1914

APPEAL from a judgment of the District Court of the Fourth Judicial District of the Territory of Arizona, in and for the County of Coconino. Edward M. Doe, Judge. Affirmed.

The facts are stated in the opinion.

Mr. J E. Jones, for Appellant.

Mr. T A. Flynn and Messrs. Ellinwood & Rose, for Appellee.

OPINION

O'CONNOR, J.

The appellee, Howard Sheep Company, commenced this action to establish its rights to the waters flowing in Spring Valley Wash at flood seasons, and impounded by it in Howard Lake and appropriated to use in stock-raising, and for the purpose of restraining the appellant, J. F. Daggs, from diverting such flood waters from plaintiff's ditch used by plaintiff for conveying such waters from the said wash to said lake. The defendant demurred to the complaint, assigning a number of grounds for demurrer, among which he specifies that the complaint fails to state facts sufficient to constitute a cause of action, because the facts stated do not authorize the court to grant the relief sought, or any relief, because the complaint fails to show that the water was ever appropriated by plaintiff to a beneficial use, and because the complaint fails to show that defendant is not entitled to a reasonable use of water on his lands, but seeks to enjoin such use. The defendant answers with denials of the allegations of the complaint, and also sets forth his rights in the nature of an affirmative defense presenting his title to a part of the flood waters in question. The court overruled the demurrers, and the issues of fact were submitted to the jury generally and upon special interrogatories. The jury returned a general verdict for the plaintiff and answered the interrogatories submitted by the court. Upon the coming in of the verdicts of the jury, the court made and filed its findings of facts in accordance with the verdicts of the jury and made conclusions of law therefrom, and ordered judgment entered accordingly for the plaintiff. The judgment was rendered and entered on the 16th day of January, 1912. A motion for the new trial was made on February 27, 1912, and considered made, filed, and overruled as of January 16, 1912, by stipulation of counsel entered into in open court on January 16, 1912. The stipulation so made was to the effect that defendant was allowed 40 day's additional time to the time given by the statute in which to prepare and file a motion for a new trial. The motion for a new trial was actually filed February 27, 1912. When filed it was deemed overruled as of January 16, 1912, in accordance with the said stipulation. The defendant appeals from the judgment and from the order refusing a new trial.

The appellee on this appeal contends that appellant has failed to present his appeal in accordance with the rules of this court relating to the matter of assigning errors, and for that reason we are precluded from the consideration of any errors requiring an examination of the evidence; that we can only consider the questions raised by the demurrer, and such fundamental errors as manifestly appear upon the judgment-roll, because no other error is assigned. Aside from the fact that the errors are not sufficiently assigned to meet the requirements of our rules, the contention of appellee must be sustained upon another ground. The record discloses that the motion for a new trial was not made and filed until February 27, 1912, although the judgment was rendered on January 16, 1912 -- 42 days prior. Paragraph 1478, Revised Statutes of Arizona of 1901, provides:

"All motions for new trials in arrest of judgment or to set aside a judgment shall be made within five days after the rendition of verdict or judgment, if the term of court shall continue so long; if not, then before the end of the term."

The terms of this law are mandatory and must be obeyed by the courts as well as by the parties. As was said by the court in Gill v. Rodgers, 37 Tex. 628, before Arizona adopted this statute:

"We know of no exception to this requirement of the statute, which will allow parties litigant to come in after the expiration of the time by law, with a simple motion for a new trial."

Gill v. Rodgers, supra, was followed in Svea Ins. Co. v. McFarland, 7 Ariz. 131, 60 P. 936, and the same rule approved in White v. Springfield etc. Ins. Co., 3 Ariz. 352, 29 P. 1006, and Walker, v. Blake, 13 Ariz. 1, 108 P. 221.

Counsel cannot stipulate to disregard the mandatory requirements of a statute, and thereby nullify its provisions. The text in 29 Cyc. 927, which is fully supported by the authorities, is as follows:

"In most jurisdictions statutes or rules of court having the form of statutory enactments provide that an application for a new trial must be made within a certain number of days after the rendition of the verdict or decision, or within some other fixed time. The statutory provisions must be strictly complied with. Where a motion is not filed until after the time therefor has expired, the effect is the same as if no motion were filed at all. A motion filed out of time may be either stricken from the files or overruled, and the reviewing court cannot correct the errors which are grounds for new trial."

Paragraph 1473, Revised Statutes of Arizona of 1901, provides that: "Every motion for new trial shall be in writing, and shall specify generally the grounds upon which the motion is founded. . . ."

A set of facts like the facts in this case was before the court in Carmack v. Erdenberger, 77 Neb. 592, 110 N.W. 315, and it was said by the court:

"The appellant contends that the record with respect to a motion for a new trial discloses a common practice -- that is, that the courts frequently, during the hurry incident to the closing days of the term, rule on a motion in anticipation of one to be filed subsequently -- and that, where this is done the defeated party by custom is allowed to file his motion at any time within three days from the adjournment of the term. The trouble with that contention is that the alleged custom runs counter to the statute. Section 317, Code of Civil...