James James v. George Appel

• Decision Date: 04 January 1904
• Docket Number: No. 108,108
• Citation: 192 U.S. 129,24 S.Ct. 222,48 L.Ed. 377
• Parties: JAMES G. JAMES, Appt. , v. GEORGE H. APPEL
• Court: U.S. Supreme Court

192 U.S. 129

24 S.Ct. 222

48 L.Ed. 377

JAMES G. JAMES, Appt.,

v GEORGE H. APPEL.

No. 108.

Argued and submitted December 17, 1903.

Decided January 4, 1904.

Messrs. J. F. Bowie, Thomas B. Bishop, and Bishop, Wheeler & Hoefler for appellant.

[Argument of Counsel from pages 129-133 intentionally omitted] Messrs. C. W. Holcomb, W. C. Keegin, and J. H. McGowan for appellee.

[Argument of Counsel from pages 133-134 intentionally omitted] Mr. Justice Holmes delivered the opinion of the court:

This is an appeal from a judgment of the supreme court of the territory of Arizona, dismissing an appeal because taken too late. The appellee recovered a sum from the appellant in the court of first instance, and, after judgment was entered, the appellant moved for a new trial. The judge who tried the case, being unable to attend, made an order in chambers, continuing the motion to another term. At a later term, after several similar continuances, the motion was overruled, and the appellant then appealed to the supreme court of the territory. These events took place before the passage of the Arizona Revised Statutes of 1901. (See par. 1479.) It is assumed that the appeal was too late if the judgment became final at the term when it was rendered (Revised Statutes of Arizona, 1887, par. 849), and we may assume further that the ground of dismissal was the paragraph of the Revised Statutes requiring that motions for new trials 'shall be determined at the term of the court at which the motion shall be made.' Rev. Stat. 1887, par. 837, and the further provision of par. 842. By the latter, as amended in 1891, 'when, upon motion, a new trial is denied,' a review by the supreme court is provided for, and it then is enacted that '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 denied, and the questions that may have been raised thereby shall be subject to review by the supreme court as if said motion had been overruled and exceptions thereto reserved and entered on the minutes of the court.' Acts of 1891, No. 49, p. 69.

The Arizona par. 837 is copied from a similar section in the Texas code, Act of May 13, 1846, § 112, Hart's Dig. Texas Code, art. 766, 1 Sayles,' Texas Civ. Stat. art. 1372. Long before its adoption in Arizona the latter section had been construed in Texas as mandatory, and as discharging a motion by operation of law if not acted upon at the same term. It was held to put it out of the power of the court to postpone the motion for a new trial to the next term, and then to act upon it. If the requirement could be avoided by a continuance, it would be made almost nugatory. McKean v. Ziller, 9 Tex. 58; Bullock v. Ballew, 9 Tex. 498; Bass v. Hays, 38 Tex. 128. When a statute is taken in this way from another, even a foreign, state, it generally is presumed to be adopted with the construction which it has received. Tucker v. Oxley, 5 Cranch, 34, 42, 3 L. ed. 29, 31; Henrietta Min. & Mill. Co. v. Gardner, 173 U. S. 123, 130, 43 L. ed. 637, 640, 19 Sup. Ct. Rep. 327; Com. v. Hartnett, 3 Gray, 450. See Coulam v. Doull, 133 U. S. 216, 33 L. ed. 596, 10 Sup. Ct. Rep. 253. On this ground as well as that of the meaning of the words, the act had been construed as in Texas by the supreme court of Arizona. Ruff v. Hand, 24 Pac. 257. In view of the history of the section we shall spend no more time upon the question. Even were it more doubtful, we are of opinion that the amendment of 1891 to par. 842 makes the meaning plain. The words 'then [necessarily after the end of the term] said motion shall be denied,' show that the motion is disposed of at the end of the term. Furthermore, they do not mean that an order must be made out of term because of the failure to make an order within it, but mean that the motion shall be barred by the lapse of time, adopting the decision of the year before in Ruff v. Hand, and save an exception as if the motion had been denied by the court. The amendment assumes or enacts that the motion is to be deemed overruled at the end of the term, and has for its object to give the party an exception in case he appeals from the judgment, so that the propriety of granting the motion may be reviewed along with the other matters brought before the supreme court. See Spicer v. Simms (Ariz.) 57 Pac. 610.

It is urged that at least the statute cannot be meant to operate when the postponement is for the convenience of the court, and the case is likened to those where a judgment or order is entered nunc pro tunc in order to prevent a loss of rights through a delay caused by the court itself. But there is no need of an exception in such a case. The party's rights are saved, but transferred for consideration to a higher court, and were it otherwise we should hesitate to read the exception into such absolute words.

It is said that by the foregoing construction the legislature attempts an unconstitutional assumption of judicial functions. But this is a mistake, both in form and substance. In form, because the legislature does not direct a judgment, but merely removes an obstacle to a judgment already entered. (We need not consider whether a different...