Sawyer v. Huning

• Decision Date: 21 May 1919
• Docket Number: Civil 1676
• Citation: 181 P. 172,20 Ariz. 357
• Parties: E.A. SAWYER, Appellant, v. HENRY HUNING, Appellee
• Court: Arizona Supreme Court

181 P. 172

20 Ariz. 357

E.A. SAWYER, Appellant, v. HENRY HUNING, Appellee

Civil No. 1676

Supreme Court of Arizona

May 21, 1919

APPEAL from an order of the Superior Court of the county of Navajo granting a new trial. Sidney Sapp, Judge. Order affirmed.

Mr Thorwald Larson, for Appellant.

Mr. C H. Jordan and Mr. J. E. Crosby, for Appellee.

OPINION

CUNNINGHAM, C. J.

The appellee, as plaintiff, commenced this action against the appellant on notes made by the defendant to plaintiff. The defendant set forth his defense, praying a cancellation of the notes and other affirmative relief. On a trial before the court with a jury, the jury rendered a general verdict in favor of the defendant. On the seventeenth day of December 1917, the court rendered a judgment in favor of the defendant in accordance with the general verdict, granting him the relief prayed for in his cross-complaint.

The plaintiff filed his motion for a new trial in due time, on December 26, 1917. Referring to the minute entries in the supplemental abstract of the record, filed by the appellee, we find on January 2, 1918, the following:

"January 2, 1918. The following telegram is entered upon the minutes of the court by the clerk at this time: 'Phoenix, Ariz., 4:23 p.m. 1 -- 2/18. Lloyd C. Henning, Clerk of the Superior, Court, Holbrook, Arizona. The court for good and sufficient reasons orders all motions, pleadings and cause for trial to be continued from this the second day of January, '18 until Monday 14 of January, 1918, this order you spread on your minutes as of 10 a.m. to-day.

"SIDNEY SAPP, Judge.'"

The following minute orders appear:

"Jan. 14, 1918. The court directed the clerk to enter upon the minutes of the court the continuance of the hearing of motion for new trial in this action until January 16, 1918, on account of illness of the judge, which said continuance is satisfactory to all parties in this action."

"January 16, 1918. In the above-entitledd cause the hearing on the plaintiff's motion for a new trial is continued from this date to January 23, 1918, by agreement of counsel."

"January 16, 1918. The Hon. Sidney Sapp, Judge of this court, in open court, directed the clerk to enter in his minutes that, because of the illness of the said judge, he was not able to be present in court, January 2, 1918, the date on which motion for new trial herein was to be heard, and that all interested parties were notified, as well as the clerk of the court, that the hearing would take place January 14, 1918, to which neither side have made and do not make any objections. On this 16th day of January, 1918, the court, at the request of the defendant, now continues the hearing on motion for new trial herein until January 23, 1918."

The hearing of the motion for a new trial was postponed from January 23, 1918, from time to time until April 8, 1918, when the parties argued the motion, and upon such submission the court announced that a decision would be rendered May 6, 1918.

On May 6, 1918, the court rendered its decision on the motion, granting the plaintiff a new trial. From which order the defendant appeals, and assigns as error the said order granting a new trial.

The appellant contends that the appellee's motion for a new trial was denied by operation of law 20 days after the seventeenth day of December, 1917, the date of rendition of the judgment, to wit, on the seventh day of January, 1918, for the reason that the motion was not continued by any valid order of the court nor by a stipulaton of the parties as prescribed by paragraph 591, C.C.A. 1913.

We held, in Chenoweth v. Prewett, 17 Ariz. 402, 153 P. 420 that --

"Unless the court retains jurisdiction by proper orders of continuance or by stipulation of the parties, it is without power to hear and determine the motion after 20 days' lapse of time from the rendition of judgment."

See, also, Bigler, v. Welker, 16 Ariz. 448 141 P. 124.

We are referred to no law permitting a trial judge who is absent from his county seat, and at the time in another county, to make a valid order and transmit such order by telegraph to the clerk of the court for entry upon the minutes of the distant court. The judge's presence in the county where the causes are pending is absolutely necessary to te validity of all judicial acts, except such acts as the statutes provide may be performed outside of a county and transmitted to the county by the means prescribed. The judge could not delegate to the clerk the authority to make the order of continuance, nor could the judge make the order while in Phoenix and send it by telegraph to Holbrook for the clerk there to enter, in the absence of the judge. The entry, on its face, discloses no authority for the existence of the order. The order relied upon by the appellee is void, as an order of the court, and served no duty of such an order of continuance of the motion for a new trial.

The minutes of the court entered by the judge on the sixteenth day of January recite that all interested parties were notified of the judge's inability to hear the motion on January 2, and that it would be heard on January 14, 1918, to which they agreed by a silent acquiescence. At the time the order was made in the minutes, January 16, 1918, the defendant moved for a postponement of the hearing until January 23, 1918, and his motion was granted.

We think these several entries in the minutes show the existence of a stipulation of the parties continuing the hearing from January 2, 1918, to January 14, 1918, at the request of the judge because of his illness. Hence the court retained jurisdiction to pass upon the motion by orders of the court and by stipulation of the parties. The record presents a case different from Chenoweth v. Prewitt and from Bigler v.Welker. Before the statute (paragraph 591, supra,) "deems" motion denied at the expiration of 20 days after rendition of judgment, there must be absent from the case, as a fact, all valid court orders continuing the hearing of the motion, and no stipulation of counsel. The statute does not require a stipulation of counsel to be more solemnly entered into than is necessary to bind the parties. An agreement reached in open court and recited in the minutes is binding on the parties, and neither party will be heard to assume a position contrary to such agreement in the further progress of the case. It would shock the conscience for a party to agree in open court to a postponement of the hearing and thereafter to ask for and be granted further continuances of the motion for a new trial and raise no objection to the court passing on the motion until the court rules against his contention, and then, for the first time, on appeal, contend that the court lost jurisdiction because the...