Merrill v. Wheeler
| Decision Date | 17 November 1915 |
| Docket Number | Civil 1471 |
| Citation | 17 Ariz. 348,152 P. 859 |
| Parties | M. H. MERRILL, Appellant, v. HARRY C. WHEELER, Sheriff of Cochise County, Appellee |
| Court | Arizona Supreme Court |
APPEAL from an order of the Superior Court of the County of Cochise granting a new trial. A. C. Lockwood, Judge. Reversed and remanded, with directions.
Mr John C. Gung'l, for Appellant.
Mr Lyman H. Hays, for Appellee.
An action on a money demand was brought in the superior court of Cochise county by the Gleeson's Cash Store, a corporation, against M. H. Merrill, the appellant herein. By virtue of a writ of attachment in said action, the sheriff of Cochise county levied upon and obtained the custody of certain personal property of the said Merrill, to wit, a stallion. While the animal was in the custody of the sheriff under the writ of attachment, it got sick and died. The present action by M. H. Merill, as plaintiff, against Harry C. Wheeler, sheriff of Cochise county, Arizona, defendant is grounded on the alleged negligence of the sheriff in keeping said stallion while in his custody under the said writ of attachment, and by reason of which said negligence the animal was lost to the said Merrill, to his damage in the sum of $1,250. The cause was tried to a jury, which rendered a verdict in favor of the plaintiff in the sum of $625, upon which verdict the judgment of the court was entered against the sheriff, Harry C. Wheeler, the appellee herein. The appellee moved for a new trial in said action, which was granted by the court.
The appeal here is from the order granting the motion for a new trial. The appellee appears in this court and asks that said appeal be dismissed for want of jurisdiction, the ground of said objection being that an order granting a motion for a new trial is not an appealable order. To sustain this contention, the appellee invokes the decisions of this court on the provisions of the Revised Statutes of Arizona of 1887 and 1901, respectively regulating the right of appeal. Under those statutes it has been held that the right of appeal is limited to the final judgment, but such decisions have no application here. By the provisions of paragraph 1227 of the Civil Code of 1913 subdivision 2, there is given a direct appeal from an order granting a motion for a new trial, and this direct appeal is given independent of any appeal from a final judgment entered in the action. There being no...
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Bean v. Gorby
...under the provisions of section 21-1702, A.C.A.1939, an appeal will lie from an order denying a motion for a new trial. Merrill v. Wheeler, 17 Ariz. 348, 152 p. 859; Pacific Finance Corp., of Cal. v. Morrow, 76 Ariz. 207, 262 P.2d 247. The Motion for a new trial in the instant case, omittin......
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Welch v. United Mutual Benefit Association
... ... file an answering brief is equivalent to a confession of ... error by appellee. Merrill v. Wheeler, 17 ... Ariz. 348, 152 P. 859; Childs v ... Frederickson, 21 Ariz. 248, 187 P. 573; ... Skelsey v. Kuhn, 23 Ariz. 367, 203 P. 1082; ... ...
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Adkins v. Adkins
... ... a brief, we will reverse the case. Navarro v ... State, 32 Ariz. 119, 256 P. 114; Merrill v ... Wheeler, 17 Ariz. 348, 152 P. 859; Childs ... v. Fredrickson, 21 Ariz. 248, 187 P. 573; ... Skelsey v. Kuhn, 23 Ariz. 367, 203 P. 1082; ... ...
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Navarro v. State
... ... file an answering brief is equivalent to a confession of ... error by appellee. Merrill v. Wheeler, 17 ... Ariz. 348, 152 P. 859; Childs v ... Frederickson, 21 Ariz. 248, 187 P. 573; ... Skelsey v. Kuhn, 23 Ariz. 367, 203 P. 1082; ... ...