Hancock v. Herrick

• Decision Date: 17 January 1891
• Docket Number: Civil 292
• Citation: 29 P. 13,3 Ariz. 247
• Parties: WILLIAM A. HANCOCK et al., Plaintiffs and Appellants, v. NEWELL HERRICK et al., Defendants and Appellees
• Court: Arizona Supreme Court

29 P. 13

3 Ariz. 247

WILLIAM A. HANCOCK et al., Plaintiffs and Appellants, v. NEWELL HERRICK et al., Defendants and Appellees

Civil No. 292

Supreme Court of Arizona

January 17, 1891

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. William W Porter, Judge.

Reversed.

P. S Perley, and M. H. Williams, for Appellants.

"If a motion for a new trial is granted the cause is to be tried anew. If a motion in arrest of judgment is granted a repleader will be awarded and the cause proceeded with as before." Texas Pleading and Practice, p. 51.

On September 25, 1887, appellants were granted a "new trial." They have not had a trial since. A judgment was rendered against them on May 6, 1889, but it was without trial and without their fault.

A new trial, ex vi termini, is a re-examination of the issues of fact which have once been tried. It is not a re-examination of the issues of law; it is not a repleading.

"The effect of granting a new trial is to remit the cause back to the stage of the original joinder of issues, and it must then be brought on a second time for trial in due course and in regular form." 3 Wait's Practice, 440, 441.

"And in awarding a new trial the court has no power to direct that the evidence given on the previous trial, in whole or in part, shall stand as evidence on the second trial." 13 Abb. 22; 3 Wait's Practice, 441.

"The only mode by which evidence given on the former trial may be made available on the second is by consent or stipulation between the parties." Id. 441.

"The granting of a new trial supersedes the effect of the former trial or wipes out the verdict. The case goes back upon all the issues of fact." Hilliard on New Trials, p. 74; Hidden v. Jordan, 28 Cal. 301.

"A new trial is a rehearing of the legal rights of the parties upon disputed facts." Bouvier's Law Dictionary, 1880 ed.

"It is either upon the same or different or additional evidence." Id.

"A new trial is a re-examination of the issues of fact which have once been tried by a court in the same court in which the first trial was had." Green's Practice and Pleading, sec. 1091.

"A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court or by referees."

"The first element is that a new trial is a re-examination of an issue of fact. It is not a re-examination of an issue of law. Upon the same principle, viz.: that a new trial is a re-examination of an issue of fact, it has been held that errors in rulings upon demurrers to pleadings cannot be reviewed on motion for new trial. This is manifestly correct." Hayne on New Trial, sec. 1.

Thompson on New Trials (vol. 2, sec. 2708) says: "A new trial is a retrial or re-examination in the same court of an issue of fact, or some part or portion thereof, after verdict by a jury, report of a referee, or a decision by the court. It is a retrial of the facts of the case or a re-examination of an issue of fact or rehearing of the legal rights of the parties upon disputed facts before a court or jury which has been tried at least once before the same court."

H. N Alexander, and H. B. Lighthizer, for Appellees.

Sloan, J. Gooding, C. J., concurs.

OPINION

The facts are stated in the opinion.

SLOAN, J.

This action was commenced December 21, 1885, and was brought to foreclose two mortgages,--one given to secure a note for $ 1,008.60, bearing date November 1, 1883, signed by the said William A. Hancock, and made payable to the order of Gus Ellis & Co.; the other, to secure a note for $ 1,602.90 bearing date December 17, 1883, signed by the said William A Hancock and Lillie B. Hancock, his wife, and made payable to Herrick & Co., appellees herein. The mortgage given to secure the first of said notes was executed by said William A. Hancock, covering lots 14, 15, 16, 17, and 18, in block 77, in the city of Phoenix, and was assigned February 28, 1885, to the appellees herein, Herrick & Co. The mortgage given to secure the second of said notes was executed by the said William A. Hancock and his wife, and covered the property described as aforesaid. Each of said notes sued upon was made a separate cause of action in the complaint, which was in the usual form, and verified. In their answer the appellants admitted the execution of the note bearing date November 1, 1883, but, by way of special defense, set up that, at the time of the execution of the note and mortgage, they were husband and wife, and that the property described in the latter was and had been occupied by them as a homestead, and did not exceed in value the sum of five thousand dollars; that said mortgage was executed by the said William A. Hancock alone; and that said Lillie B. Hancock, his wife, did not join therein. These facts were also pleaded by them by way of cross-complaint, in which affirmative relief was asked in the way of an injunction to restrain appellees from enforcing any claim against said property under said mortgage, and that the same be declared...