Mendez v. Moya
| Decision Date | 26 June 1939 |
| Docket Number | Civil 4020 |
| Citation | 54 Ariz. 44,91 P.2d 870 |
| Parties | MARIA LUISA AVILES MENDEZ, and Infant, by JOSEFA DOMINGUEZ AVILES, Her Guardian Ad Litem, Appellant, v. EDWARD MOYA and PAULINE MOYA, Husband and Wife, and ALVIN RICHARD WILSON and DESSIE D. WILSON, Husband and Wife, Appellees |
| Court | Arizona Supreme Court |
APPEAL from an order of the Superior Court of the County of Santa Cruz. Elbert R. Thurman, Judge. Order affirmed.
Mr Stephen D. Monahan, for Appellant.
Messrs Duffy & Robins, for Appellees.
Maria Luisa Aviles Mendez, hereinafter called plaintiff, has appealed from an order of the superior court of Santa Cruz county, granting the motion of Edward Moya, Pauline Moya Alvin Richard Wilson and Dessie D. Wilson, hereinafter called defendants, for a new trial.
The facts necessary for a determination of the issue involved on the appeal may be stated as follows: Plaintiff, through her guardian ad litem, had brought suit against defendants for injuries resulting out of an automobile accident which she alleged was caused by the negligence of defendants. The case was tried to a jury, which returned a verdict in favor of plaintiff in the sum of $1,500, and judgment was duly entered on the verdict. Thereafter defendants moved for a new trial on the following grounds:
The court, after considering the matter, entered the following order:
"It is now by the Court ordered that defendants' Motion for a new trial, heretofore taken under advisement on January 14th, 1938, be, and the same is hereby granted for the reason that the plaintiff failed to prove at the trial of the case the co-partnership of the defendants as alleged in paragraph III of the Amended Complaint."
and it was from this order the appeal was taken.
The question before us is whether the trial court abused its discretion in granting the motion. It is, of course, the rule that when a motion for a new trial is granted every reasonable presumption is in favor of the order of the trial court, and unless it affirmatively appears from the record that it has abused its discretion, the order should be sustained. Young Mines Co., Ltd., v. Citizens' State Bank, 37 Ariz. 521, 296 P. 247. It is also true that if a motion for a new trial is based on a number of grounds, and it is granted in general terms, if any of the grounds set up would sustain the order, we must presume that the court granted it on those grounds. Brownell v. Freedman, 39 Ariz. 385, 6 P.2d 1115. On the other hand, if the court in the order expressly states the grounds upon which it is granted, we must determine the appeal upon the issue of whether the particular ground stated would justify the granting of the motion. Young Mines Co., Ltd., v. Citizens' State Bank, supra.
In the present case, the record shows the motion was granted solely because the plaintiff failed to prove at the trial of the case that the defendants were copartners, as alleged by the complaint. Since the reporter's transcript was not made a part of the record on appeal, we must, of course, presume that the court was correct in its statement that the plaintiff had failed to prove this fact, nor, indeed, does plaintiff deny that this is true. She contends, however, that under the pleadings and the law, it was not necessary for her to introduce evidence tending to sustain the allegation of partnership. The complaint onwhich the case was tried alleged as follows:
"Upon information and belief that at all times hereinafter mentioned the said defendants were co-partners doing business under the name and style of Wilson's Bakery in Nogales, Arizona, Santa Cruz County, Arizona."
The answers admitted the residence of plaintiff and defendants, but denied generally all the remaining allegations of the complaint. These answers were not verified. Section 3782, Revised Code of 1928, reads, so far as material, as follows:
It is urged by plaintiff that the failure of the defendants to verify their answers was, as a matter of law, an admission of the allegations of the complaint in regard to the partnership, so that it was not necessary to offer any proof upon this issue. In support of her contention, she cites us to the case of Daggs v. Phoenix Nat. Bank, 5 Ariz. 409, 53 P. 201, 205. This case was determined when the code of 1887 was in effect. Section 735 of that code reads, in part, as follows:
This is, in substance, the same as section 3782, supra.
In the case just cited, as in the present one, the answer was an unverified general denial. The court said:
"... The general denial made by the defendant in error by way of reply to the counter-claims set up in the answers of the plaintiffs in error was sufficient, although not verified, to put the plaintiffs in error upon proof, except as to any matter pleaded therein which by paragraph 735, Revised Statutes, is required to be denied under oath...."
We think this implies that it is not necessary for the plaintiff to offer proof of any matters set up in his complaint which are required by the statute to be denied under oath by the defendants, but that so far as such matters are concerned the failure to verify an answer is an admission of the correctness of the allegations of the complaint on those...
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