Newhall v. Porter

• Decision Date: 09 November 1900
• Docket Number: Civil 726
• Citation: 7 Ariz. 160,62 P. 689
• Parties: CHARLES K. NEWHALL, Plaintiff and Plaintiff in Error, v. J. N. PORTER, Defendant and Defendant in Error
• Court: Arizona Supreme Court

62 P. 689

7 Ariz. 160

CHARLES K. NEWHALL, Plaintiff and Plaintiff in Error, v. J. N. PORTER, Defendant and Defendant in Error

Civil No. 726

Supreme Court of Arizona

November 9, 1900

WRIT OF ERROR from a judgment of the District Court of the Second Judicial District in and for the County of Graham. F. M Doan, Judge. Affirmed.

The facts are stated in the opinion.

A. B McMillan, and Thomas Armstrong, Jr., for Plaintiff in Error.

Moorman & McFarland, for Defendant in Error.

Courts will not review errors on appeal that were not made grounds of a motion for a new trial in the court below. Wyoming Loan and Trust Co. v. Holliday, 3 Wyo. 386, 24 P. 193; United States v. Trabling, 3 Wyo. 144, 6 P. 721; Maloy v. Berking, 11 Mont. 138, 27 P. 442; Anderson v. Connecticut Mut. Life Ins. Co., 55 Kan 81, 39 P. 1038; Haight v. Tryon, 112 Cal. 4, 44 P 318; Harris v. Van De Venter, 17 Wash. 489, 50 P. 50; Smith v. Smith, (Cal.) 48 P. 730; Schaum v. Watkins, 6 Kan. App. 923, 50 P. 951.

OPINION

DAVIS, J.

-- The plaintiff in error, Charles K. Newhall, claiming to be the surviving partner of a partnership alleged to have existed between himself and one George Smith until the latter's decease, and as such to have been in the possession of partnership assets consisting of a herd of cattle, some horses, and saddles, brought an action in the court below against the defendant in error, J. N. Porter, to recover damages for the alleged wrongful conversion by him of the aforesaid property. Porter, denying the claim of partnership, and averring the ownership of the property to have been in the said George Smith individually, based his right to the control and possession thereof upon the fact of his being the duly qualified and acting administrator of the estate of the said decedent. Several defenses were pleaded in the answer, but the main issue at the trial was upon the question as to the existence of the partnership relation between Newhall and Smith. There was no written agreement, and the plaintiff relied upon evidence of the conduct and declarations of the parties to show the partnership. The cause was tried before the court, sitting without a jury, and a judgment was rendered in the defendant's favor. A motion by the plaintiff for a new trial was denied, and he brings the case here for review.

Numerous assignments of error are made. Seven of these are predicated upon rulings of the lower court in the admission or rejection of evidence. Upon referring to the motion for a new trial in this case, we find the same to have been based upon the following grounds: 1. That the judgment is contrary to the law and the evidence; 2. That the judgment is not supported by the facts proved and admitted at the trial; 3. That the court's findings of fact are not sustained or warranted by the evidence; and 4. That the conclusions of law are not according to the facts, and the findings of fact are not supported by the evidence. Our statute provides that "every motion for a new trial shall be in writing and shall specify generally the grounds upon which the motion is founded. . . . Upon the general ground that the court erred in admitting or rejecting evidence, the court shall review all rulings during the trial upon questions of evidence. Upon the general ground that the court erred in charging the jury and in refusing instructions asked, the court shall review all the charge and every portion thereof and the ruling refusing any instruction asked, and it shall not be necessary in the motion to set out the particular portion alleged as erroneous. Upon the general ground that the evidence does not sustain the judgment or the verdict, the court shall review the sufficiency of the evidence in the case to maintain the judgment or verdict, without more particular specification in the motion." Act No. 21, Laws 1893. The law thus contemplates that errors occurring at the trial shall first be reviewed by the lower court upon the motion for a new trial. In the case before us the rulings of the trial court in the admission and rejection of evidence were not urged as a ground for new trial. If they constituted error, we must presume that the court below would, upon application, have corrected it by granting a new...