Sadler v. Arizona Flour Mills Co.

• Decision Date: 26 January 1942
• Docket Number: Civil 4390
• Citation: 121 P.2d 412,58 Ariz. 486
• Parties: ROY W. SADLER, Appellant, v. ARIZONA FLOUR MILLS COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

121 P.2d 412

58 Ariz. 486

ROY W. SADLER, Appellant, v. ARIZONA FLOUR MILLS COMPANY, a Corporation, Appellee

Civil No. 4390

Supreme Court of Arizona

January 26, 1942

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, judge. Judgment affirmed.

Mr. V L. Hash, for Appellant.

Messrs Cunningham & Carson and Mr. Joseph T. Melczer, for Appellee.

OPINION

ROSS, J.

This is an appeal by defendant, Roy W. Sadler, from an order setting aside the verdict and granting the motion of plaintiff, Arizona Flour Mills Company, for a new trial on the grounds (1) that defendant and his attorney misconducted themselves in argument to the jury, and (2) that the verdict is against the weight of the evidence and contrary to law.

The verdict was returned into court on December 5, 1940, and, on motion of defendant, an order was made granting judgment thereon in his favor. On December 7, 1940, plaintiff filed its motion for a new trial, which was granted December 14 1940.

Defendant now contends that the motion for new trial was filed before the entry of judgment and that both it and the order granting the new trial were premature under the decisions of this court. He cites Ellis v. First National Bank, 19 Ariz. 464, 172 P. 281 and Gibson v. McLane, 17 Ariz. 61, 148 P. 288 289. Since the decisions in these cases the law has been changed. The controlling statute now is section 21-1230, Arizona Code 1939 (Rule 58, Rules Civ. Proc.).

Defendant's objection to the appeal on the ground that the motion for new trial was premature is without merit. We have frequently held it to be the duty of the court, under section 22, article VI of the state Constitution, to disregard any error or defect in pleading or proceedings which does not affect the substantial rights of a party. Arizona Cotton Ginning & Manufacturing Co. v. Sims, 29 Ariz. 198, 240 P. 341.

It should not be overlooked that the court may on its own initiative order a new trial at any time not later than ten days after the entry of judgment, upon any of the grounds specified in section 21-1307 (Rule 59 (d), Rules Civ. Proc.) and, when this section is read in connection with section 21-1301, it would seem that such power may be exercised by the court at any time after verdict, decision or judgment and for ten days after judgment. See Chesevski v. Strawbridge & Clothier, (D.C.) 25 F.Supp. 325.

Section 21-1301, or the part material to this case, reads as follows:

"21-1301. Statutory grounds. -- A verdict, decision or judgment may be vacated and a new trial granted, on motion of the aggrieved party, for any of the following causes materially affecting his rights:

"2. Misconduct of the jury or prevailing party.

"7. That the verdict, decision, findings of fact, or judgment is not justified by the evidence or is contrary to law."

The defendant was the prevailing party and the court granted the motion for a new trial on the ground of misconduct of his attorney in his argument to the jury. In such argument defendant's counsel repeatedly referred to the plaintiff as "a soulless corporation reaching out to take money from the pocket of defendant," and to witness J. A Merrill as "Merrill, alias Gonzales." There was no evidence in the record to sustain either of these statements or insinuations. It appears that Merrill's name had formerly been Gonzales but had been changed on his petition in a regular proceeding before a court of competent jurisdiction. This witness had a right to have his name changed and the fact that he did so in a legal way should protect him and his testimony from the odium that usually attaches to people who go under assumed names or different aliases. The reference to the plaintiff as a soulless corporation endeavoring to pick defendant's pocket was, of course, uncalled for. Whether such utterances to the jury tended to excite the bias and prejudice of the jury was a question, we think, for the court to pass on in considering the motion for new trial. Defendant's contention is that, since no exceptions were taken to such utterances by the plaintiff at the time, they may not be used as a basis for setting aside the verdict or judgment. If this were a case where plaintiff was trying to sustain...