Smith v. City of Nogales

• Decision Date: 15 January 1923
• Docket Number: Civil 2008
• Citation: 24 Ariz. 557,211 P. 592
• Parties: W. H. SMITH and UNITED STATES FIDELITY AND GUARANTY COMPANY OF BALTIMORE, MARYLAND, a Corporation, Appellants, v. CITY OF NOGALES, ARIZONA, a Municipal Corporation, Appellee
• Court: Arizona Supreme Court

211 P. 592

24 Ariz. 557

W. H. SMITH and UNITED STATES FIDELITY AND GUARANTY COMPANY OF BALTIMORE, MARYLAND, a Corporation, Appellants, v. CITY OF NOGALES, ARIZONA, a Municipal Corporation, Appellee

Civil No. 2008

Supreme Court of Arizona

January 15, 1923

APPEAL from a judgment of the Superior Court of the County of Santa Cruz. Samuel L. Pattee, Judge. Affirmed.

Mr. S F. Noon, Mr. Duane Bird, Mr. Frank J. Barry, Mr. Warren Lee Kinder and Messrs. Lawler & Degnan, for Appellants.

Mr John B. Wright and Messrs. Duffy & Purdum, for Appellee.

OPINION

ROSS, J.

This appeal is prosecuted from an order granting the plaintiff-appellee a new trial. We are compelled to resort to the abstract of the evidence to find the facts, since counsel have completely ignored the rule of the court requiring them to set forth in their brief "a concise statement of the case, presenting succinctly the questions involved and the manner in which they are arranged." Rule 7, § 2 Rules of the Supreme Court. The observance of this rule is absolutely necessary to an understanding of the assignments of error and the argument of counsel to follow. The frequency with which it is neglected prompts the court to warn the profession that it constitutes sufficient cause for dismissal. Without adopting that drastic method of disposing of this case, we will assume a burden that properly belongs to counsel, simply because we incline, when we reasonably can, to decide each case upon its merits rather than summarily upon motion or sua sponte.

The city of Nogales sued the appellant Smith for a defalcation of $16,631.61 while exercising the office of city treasurer, and joined with him as a defendant his surety the United States Fidelity & Guaranty Company. A jury returned a verdict for defendants, upon which a judgment was entered. Thereafter, and within the time allowed by law, plaintiff filed a motion for a new trial, alleging as grounds therefor surprise and newly discovered evidence. As we gather from the showing made in support of motion, the surprise and newly discovered evidence consisted largely, if not entirely, in the discovery of the method adopted by defendant Smith in hiding his peculations. In other words, while the plaintiff had been able to introduce evidence tending to show that defendant Smith was short in the amount sued for, it had failed to disclose to the court and jury how the shortage had come about. At the time of filing motion for new trial, or at least at the time the court ruled on it, an expert accountant had figured out that said defendant had, by means of duplications in some sixty cases, paid the owners of vouchered claims against the city, and also for the same items had, at a later period, issued checks payable to the city's depository, or depositories, for his credit. While all the checks and vouchers were introduced in evidence, neither the plaintiff's counsel nor the jury detected that these lawful claims against the city had been paid twice -- once to the rightful owner, and once to the defendant Smith.

If what is asserted here as a fact be true, it is clear that to let the judgment stand would be an assent to a palpable miscarriage of justice. When it was shown to the court that the verdict for defendants was caused by a failure to discover defendant Smith's method of juggling accounts, the court very properly exercised its discretion in favor of a new trial, and, indeed, to have done less would have been a judicial sanction of a grievous wrong.

But it is contended that the court was without power to pass upon the motion for a new trial, because at the time he acted more than twenty days had transpired from the rendition of the judgment, without any stipulation of counsel or order of the court continuing the hearing thereon. Unless a motion for new trial be continued, in one of the ways designated, under paragraph 591, Civil Code of 1913, it is provided that it shall be deemed denied. Construing this statute in Chenoweth v. Prewett, 17 Ariz. 400, 153 P 420, it was held, in effect, that this provision was mandatory and could not be waived and that an order or...