Hays v. Richardson

• Decision Date: 13 February 1964
• Docket Number: No. 7149,7149
• Citation: 389 P.2d 260,95 Ariz. 263
• Parties: Ralph Harlan HAYS and Irene Hays, his wife, Appellants, v. Alice RICHARDSON, a widow, Appellee.
• Court: Arizona Supreme Court

Page 260

389 P.2d 260

95 Ariz. 263

Ralph Harlan HAYS and Irene Hays, his wife, Appellants, v. Alice RICHARDSON, a widow, Appellee.

No. 7149.

Supreme Court of Arizona, In Banc.

Feb. 13, 1964.

Tognoni, Parsons & Gooding, Phoenix, for appellants.

Otto H. Linsenmeyer, and Shelley & Holroyd, Phoenix, for appallee.

JENNINGS, Justice.

Appellants' motion for rehearing presents this question: Where the lower court allegedly erred in admitting evidence, is an appellant precluded from raising the error in this Court if not raised on a motion for new trial in the court below? We held, in the original decision Hays v. Richardson 95 Ariz. 64, 386 P.2d 791, that appellants were so precluded. Contrary to that decision, we do not think so now.

The facts briefly stated are that appellant Ralph Hays and appellee Alice Richardson were involved in an automobile accident. As a result of the accident the investigating officer filed charges against Hays in the Municipal Court of the City of Phoenix for driving while under the influence of intoxicating liquor and reckless driving. In the subsequent civil suit, Hays was adked on cross examination if he had pleaded guilty to these charges. Over objection he was required to answer. Appellants assigned as error the admission of the plea of guilty in evidence as an admission against interest.

In their motion for a new trial appellants did not specify the general ground that the court erred in admitting evidence. As authority for our original decision denying review we cited Newhall v. Porter, 7 Ariz. 160, 62 P. 689 (1900) and Putnam v. Putnam, 3 Ariz. 182, 24 P. 320 (1890).

The Newhall case held that error in the admission or rejection of evidence will not be considered on appeal unless it is first brought to the attention of the trial court as a ground of a motion for new trial. For the reasons hereinafter stated this holding is expressly overruled.

In Putnam, unlike Newhall, no motion for a new trial was made and appellant assigned as error that the evidence was insufficient to justify the decision of the lower court. Such error, if it was error, was good ground for a new trial and in that case we held that we cannot consider any error which would be good cause for a new trial unless a motion for a new trial upon that ground had been made to the court below, and the motion had been overruled, the ruling excepted to, and the ruling assigned as error by a proper assignment. Insofar as the Putnam case impliedly stands for the same proposition overruled in the Newhall case, it is likewise overruled.

Appellants point out that under A.R.S. § 12-2102(A) this Court is obliged to review any alleged error in rulings on the admission or rejection of evidence, regardless of whether the error complained of was brought to the attention of the lower court in the motion for a new trial.

A.R.S. § 12-2102(A, B) provide:

'A. Upon an appeal from a final judgment, the supreme court shall review any intermediate orders involving the merits of the action and necessarily affecting the judgment, and all orders and rulings assigned as error, whether a motion for new trial was made or not. 'B. If a motion for new trial was denied, the court may, on appeal from the final judgment, review the order denying the motion although no appeal is taken from the order.' (Emphasis ours.)

The statute was enacted in 1913 apparently at our suggestion in Miami Copper Co. v. Strohl, 14 Ariz. 410, at page 421, 130 P. 605, at page 610 (1913) wherein we said:

'In the revision of the Code now in progress, it would be well for the Legislature to consider a phrasing of the appellate procedure to the end that suitors may not be embarrassed in presenting their causes to this court upon considerations which may appear somewhat trifling. * * *'

In that case, appellant prosecuted the appeal from the judgment only, there being no appeal taken from the order of the court overruling the motion for a new trial. The question raised was whether this Court could, on an appeal from the judgment alone, review the order overruling the motion for a new trial and more specifically the grounds presented in such motion? We held that we could not, citing Section 1213, R.S. '01 that:

'Upon the appeal or writ of error the Supreme Court may review any intermediate order involving the merits and necessarily affecting the judgment.'

We concluded that since an order overruling a motion for a new trial was not an intermediate order within the statute the same was not reviewable upon an appeal from the judgment only.

In view of the foregoing we can infer that Section B, supra, was enacted for the purpose of eliminating the precise problem presented in the Miami Copper case. ¹

But what about Section A. Formerly the statute was permissive, namely, that the 'court may review any intermediate order involving the merits and necessarily affecting the judgment' while in the revision it is mandatory. But the legislature engrafted an addition, namely, 'and all orders and rulings assigned as error, whether a motion for new trial was made or not.'

Our decision hinges on the interpretation to be placed upon the term 'rulings.' A clue to the interpretation thereof can be found in the same Miami Copper case. We cited therein 14 Ariz. at pp. 419-420, 130 P. at pp. 609-610, a Montana case, State v. O'Brien, 18 Mont. 1, 43 P. 1091 (1896). In that case the court construed the following statute:

'Upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment.'

In construing this statute they said:

'Under the old Code, the appellate court was limited in its review to any decision of the court or any intermediate order made in the progress of the case; under the new Code, upon appeal from a judgment, the court may review not only an intermediate order, but likewise a ruling involving the merits, or which may have affected the judgment. In the use of the word 'ruling' the legislature evidently intended to permit a review of the actions of the district court upon matters of law in the exclusion or admission of testimony involving the merits of the case on an appeal from the judgment only. Such rulings had not been included in the interpretation of the words 'decision or intermediate order' in the older statute; that is, a distinction has been recognized between a decision and a ruling. The older statute is therefore to be distinguished from the new. In the one, a decision or order was regarded as a determination by the court in the settlement of the controversy or matter before it; while in the new Code a ruling means generally a settlement or decision of a point of law arising upon the trial of the case, without necessarily the force or solemnity of a judgment or order. Black, Law Dict.;...