List v. Wilkinson

• Citation: 203 P. 333,23 Ariz. 262
• Decision Date: 13 January 1922
• Docket Number: Civil 1922
• Parties: J. W. LIST, Appellant, v. W. W. WILKINSON, Appellee
• Court: Arizona Supreme Court

203 P. 333

23 Ariz. 262

J. W. LIST, Appellant, v. W. W. WILKINSON, Appellee

Civil No. 1922

Supreme Court of Arizona

January 13, 1922

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Affirmed.

Mr. E Wilder and Messrs. Davis & Goodman, for Appellant.

Mr. Le Roy Anderson and Dr. Win Wylie, for Appellee.

OPINION

ROSS, C. J.

This is an appeal from an order vacating and setting aside a judgment against appellee and granting him a new trial. It is the contention of the appellant that the court, at the time of making such order, had lost jurisdiction of the subject matter of the motion. The record shows the appellant obtained a verdict and judgment against appellee on November 9, 1920. Appellee filed his motion for a new trial November 10th. Hearing upon this motion was, by order of the court continued from time to time, the last order being entered January 8, 1921, continuing the hearing until January 15 1921. The order made on the last-mentioned date is as follows "This cause comes on regularly for hearing on motion for new trial, which said motion is argued to the court and submitted, and the court, not being sufficiently advised in the premises, takes said motion under advisement."

The court held the motion until January 25th, on which date it was granted and a new trial ordered.

Appellant's assignment of error challenges the sufficiency of the order dated January 15, 1921, to retain the court's jurisdiction to pass on the motion for a new trial thereafter. He bases his contention on paragraph 591, Civil Code, and the following decisions of this court: Bigler v. Welker, 16 Ariz. 44, 141 P. 124; Chenoweth v. Prewett, 17 Ariz. 400, 153 P. 420; Peer v. O'Brien, 21 Ariz. 106, 185 P. 644. Paragraph 591, Civil Code, provides that motions for new trial shall be deemed denied, if not determined by the court within twenty days after judgment is rendered, unless continued by order of the court or by stipulation. In the Bigler case the decision was to the effect that the motion for a new trial was denied by operation of law twenty days after rendition of judgment; it appearing that the hearing thereon had not been continued by order of the court or by stipulation of parties. In that case there was no attempt by order of the court, or otherwise, to continue the hearing on motion. In the Chenoweth case it appears fifty-eight days had intervened between the date of rendition of judgment and the date of order granting new trial. Twenty-four days after rendition of judgment parties argued motion for new trial, and submitted the same to the court for decision. We held at the time motion was argued and submitted it had been denied by operation of law, but stated in passing that --

"Had this order been made within twenty days after the rendition of the judgment, it probably would have been construed as a sufficient order continuing the hearing upon the motion, but, having been made after the twenty-day limit, it was upon a matter already decided by the law."

We also said:

"We are of the opinion, unless the court retains jurisdiction by proper orders of continuance or by stipulation of the parties, it is without power to hear and determine the motion after the twenty days' lapse of time from the rendition of judgment."

In the present case, the legality of the intervening orders of the court from the rendition of the judgment up to January 15 1921, is not questioned, and it is not suggested that the court exceeded its powers in making the order of January 15th. As we gather from the assignment and argument of appellant, it is his contention that the order of that date did not have the effect of continuing the motion for a new trial; that to take the motion under advisement as was done did not extend the time for its disposition, but resulted in a discontinuance thereof. In Ex parte Doak, 188 Ala. 406, 66 So. 64, the court had under consideration an order similar to the one we have here, and, after stating that "the order . . . was an observance of the common-law practice described in the phrase curia...