Miller v. Superior Court of Mohave County

• Decision Date: 28 November 1919
• Docket Number: Civil 1732
• Citation: 21 Ariz. 61,185 P. 357
• Parties: J. F. MILLER, Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF MOHAVE, STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

185 P. 357

21 Ariz. 61

J. F. MILLER, Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF MOHAVE, STATE OF ARIZONA, Respondent

Civil No. 1732

Supreme Court of Arizona

November 28, 1919

PETITION for Writ of Certiorari. Original proceeding. Writ quashed and case dismissed.

Mr. E E. Armour and Mr. Louis B. Whitney, for Petitioner.

OPINION

ROSS J.

This is an original proceeding praying for a writ of certiorari to issue to the superior court of Mohave county, Arizona, commanding the certification of the records and proceedings in cause, numbered in that court, 1589, wherein petitioner is the plaintiff and Anson H Smith and Minnie E. Sawyer are the defendants; that the same may be reviewed by this court.

In the petition it is alleged that judgment was rendered in said cause in favor of plaintiff on August 16, 1918; that thereafter, on August 26, 1918, and within the time allowed by law, the defendants filed their motion for a new trial; that on October 29, 1918, the court entered an order granting the new trial; that under the law the court was without jurisdiction to grant the new trial, inasmuch as the motion was deemed denied within twenty days after the rendition of the judgment, "unless continued by order of the court or by stipulation," which was not done.

Upon the showing made in the petition, the writ was ordered to be issued, and, in response to the order in the writ, the judge of the said superior court caused the clerk thereof to certify to this court all proceedings and records in said cause (No. 1589). The judge also made a separate return, in which he suggests that the plaintiff in cause No. 1589 could have appealed from the order granting a new trial, and that therefore certiorari will not lie.

The point made by petitioner is that the motion for a new trial was by operation of law denied twenty days after August 16, 1918, the date of the rendition of judgment, no order of the court having been entered or stipulation made within the twenty days, continuing the hearing of the motion, and that the court in granting a new trial was without, or exceeded, its jurisdiction. As sustaining his position, we are cited to Chenoweth v. Prewett, 17 Ariz. 400, 153 P. 420, Bigler v. Welker, 16 Ariz. 44, 141 P. 124, and Sawyer v. Huning, 20 Ariz. 357, 181 P. 172.

These cases reached this court by appeals directly from the orders, rulings, or judgments complained of, and what was said in them might have force if the order complained of here was before us on appeal. We have, however, come to the conclusion that petitioner had the remedy of appeal from the order granting a new trial, paragraph 1227 of the Civil Code so providing; and, for that reason, the ordering of the issuance of the writ by this court was improvident and erroneous. Paragraph 1495, Civil Code, authorizes the issuance by the Supreme Court of the writ of certiorari to an inferior court or tribunal exercising judicial functions when it exceeds its powers, "and there is no appeal nor, in the judgment of the court, any plain, speedy and adequate remedy." The language of the statute seems to settle it that, where there is an appeal, certiorari cannot be invoked to secure a review of the action of a superior court. This is the view adopted by this court from an early date. Territory v. Dunbar, 1 Ariz. 510, 25 P. 473; Reilly v. Tyng, 1 Ariz. 510, 25 P. 798; Territory v. Doan, 7 Ariz. 89, 60 P. 893. In the last case it was said, speaking of the writ of certiorari:

"It will not be permitted to take the place of an appeal or writ of error, even to correct...