Zugsmith v. Mullins

• Decision Date: 30 October 1956
• Docket Number: No. 6017,6017
• Parties: Albert ZUGSMITH, Appellant, v. John C. MULLINS, John B. Mills and Bernice Mills, his wife, et al., Appellees.
• Court: Arizona Supreme Court

Page 261

303 P.2d 261

81 Ariz. 185

Albert ZUGSMITH, Appellant, v. John C. MULLINS, John B. Mills and Bernice Mills, his wife, et al., Appellees.

No. 6017.

Supreme Court of Arizona.

Oct. 30, 1956.

Jerry Giesler, Rexford Eagan, Beverly Hills, Cal., W. Francis Wilson and Kent A. Blake, Phoenix, for appellant.

Jennings, Strouss, Salmon & Trask, Phoenix, for appellees.

LA PRADE, Chief Justice.

This court disposed of the appeal in this case by written decision on July 10, 1956, which opinion is reported in 81 Ariz. 33, 299 P.2d 629. Therein it is disclosed that the trial court on May 11, 1954 entered judgment in favor of plaintiff on the verdict. The next day defendant filed two motions, one for judgment n. o. v. and the other for a new trial. This procedure is authorized by Rule 50(b), Rules of Civil Procedure 1956. On May 17, 1954 the court entered the following order:

'Order, on stipulation of counsel, fixing time for hearing on defendant's motion for judgment notwithstanding the verdict (and) for new trial on May 28, 1954, at 2:00 p. m. in Div. 2.'

Thereafter, argument was commenced on May 28, and continued and completed on the morning of May 29, and the following order was entered:

'11:10 a. m. Order taking the defendant's motion for judgment notwithstanding the verdict (and) for new trial under advisement.'

No ruling was made on this motion for new trial although the court, on July 26, 1954, granting the motion n. o. v. said:

'* * * but for such order the Court would grant defendant's motion for a new trial for the reason that the court is of the opinion that defendant was deprived of a fair trial by the conduct of plaintiff's counsel before the jury and the cumulative effect thereof, including the voir dire examination of the jury and the comments of counsel during examination of witnesses; * * *.'

We reversed the judgment that had been entered n. o. v. in favor of defendant, and directed that judgment be entered for plaintiff on the verdict.

Appellee (defendant) in his motion for a rehearing asserts that we were in error in ordering that judgment be entered for appellant (plaintiff) and in holding that defendant's motion for a new trial was denied by operation of law. Other reasons are asserted but we think they are without merit.

We stated in the former opinion (81 Ariz. 33, 299 P.2d 630) that

'* * * The court did not rule upon the motion for a new trial. However, after the expiration of 20 days from the rendition of judgment, under the provisions of Rule 59(e), Rules of Civil Procedure, 1956, section 21-1308 A.C.A. 1939, said motion for a new trial is deemed denied by operation of law.'

and

'* * * While the trial court did not deny the motion for a new trial, it was denied as above stated, by operation of law. * * *'

We are now of the opinion that these conclusions are erroneous. Rule 59(e), Rules of Civil Procedure 1956, provides as follows:

'Time for determination of motion. Motions for new trial shall be determined within twenty days after rendition of judgment, and if not so determined shall be deemed denied, unless continued by order of the court, or by stipulation.'

Rule 59(e) is not a new rule. This is the same procedural rule which was Section 21-1308 in the 1939 Code and Section 3850 in the 1928 Code. It was been interpreted by this court in several cases. The rule does not say that a motion for new trial is denied automatically if not ruled upon in twenty days. It says that the motion shall be 'deemed denied, unless continued by order of the court, or by stipulation.'

In List v. Wilkinson, 23 Ariz. 262, 203 P. 333, 334, a motion for new trial was made on November 10th. Thereafter, the motion was continued by the court, and on January 15th it entered an order taking the motion under advisement. On January 25th the motion was granted. This was more than two months after is had been filed. It was urged that the statute for automatic denial, which was the same as the present Rule 59(e), operated to deny the motion. The court held that it did not, and said:

'* * * we hold that the order of the court, taking the motion for new trial under advisement, was in effect an order of continuance such as is contemplated by the statute, and that the court did not lose jurisdiction to rule thereon thereafter.'

That case and its holding has never been overruled expressly or by implication, or even modified so as to affect its plain meaning. In Bryan v. Inspiration Consol. Copper Co., 27 Ariz. 188, 231 P. 1091, a judgment was rendered June 5, 1922. A motion for new trial was filed within the time permitted, and continued until September 11, when it was argued and taken under advisement. The motion was granted on December 7, 1922, six months after judgment. This court again affirmed the decision of List v. Wilkinson, supra, and held that the order taking the motion under advisement took the case out of the operation of the statute for automatic denial. To the same effect see: Sawyer v. Huning, 20 Ariz. 357, 181 P. 172; E. A. Tovrea & Co. v. Yutich, 24 Ariz. 41, 206 P 595; Smith v. City of Nogales, 24 Ariz. 557, 211 P. 592.

If, therefore, under the plain decisions of this court, the trial court did not lose jurisdiction to rule on the motion for new trial when it entered its order taking that motion under advisement, did it thereafter lose jurisdiction to rule upon it by granting defendant's motionfor judgment n. o. v. or because an appeal was taken? We think not.

Rule 50(b) expressly authorizes a motion for judgment n. o. v. and provides that

'* * * A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. * * *'

In Montgomery Ward & Co. v. Duncan ¹ the court said as to the joint or alternative motions for judgment n. o. v. and for a new trial:

'A motion for judgment notwithstanding the verdict did not, at common law, preclude a motion for a new trial. And the latter motion might be, and often was, presented after the former had been denied. The rule was not intended to alter the existing right to move for a new trial theretofore recognized and confirmed by statute. It permits the filing or a motion for judgment in the absence fo a motion for a new trial or the filing of both motions jointly or a motion for a new trial in the altermative.'

The situation in Montgomery Ward & Co. v. Duncan, supra, was that the trial court, after granting defendant's motion for judgment n. o. v. had refused to rule on the motion for a new trial, and the court of appeals had reversed the judgment and directed that judgment be entered on the verdict, without making provision for determination of the motion for new trial. The immediate question before the Supreme Court was, therefore, whether the court of appeals erred in failing to remand the case to the trial court to have that court pass upon the motion for new trial. The court held that the granting of the motion for judgment n. o. v. did not operate as an automatic denial of the motion for new trial, and remanded for a decision on that motion.

It the trial court, as it did here, grants judgment n. o. v. and does not rule on the motion for a new trial, the party who obtained the verdict may, as he did here, appeal from that judgment. The judgment on the verdict may ultimately be reinstated because the appellate court may reverse the trial court's action as this court did in its first opinion. Whether the judgment on the verdict is to be reinstated will also depend on the outcome of any appeal that might follow from the granting or denying of the motion for new trial. Of course if a new trial is ordered and accepted the case will have to be tried anew, and likewise if a new trial is denied and there is no appeal the judgment on the verdict should be reinstated.

Better practice would seem to indicate that if alternative prayers or motions are presented for judgment n. o. v., and for a new trial, the trial judge should rule on the motion for judgment, and whatever his ruling thereon may be, he should also rule on the motion for a new trial, indicating the grounds of his decision. Rule 59(m), Rules of Civil Procedure, 1956; Montgomery Ward & Co. v. Duncan, supra. Then in the event of an appeal and cross-appeal the ruling on both motions could be reviewed. Id. It is unfortunate that under the posture of this record such cannot be done.

An examination of the cases and the texas analyzing Rule 50(b) shows that there are many complications to be hurdled in correctly proceeding under the rule. Messrs. Barron and Holtzoff, in their work on Federal Practice and Procedure, make the following pronouncements with reference to the choices available to the trial court in passing on a motion for judgment n. o. v. and a motion for new trial in the alternative.

'1. It may deny the motion for judgment and grant a motion for new trial, in which case there is ordinarily no appeal. (Italicized words not applicable in this jurisdiction-see Sec. 12-2101 F. 1., A.R.S. 1956, Sec. 21-1702, A.C.A. 1939.)

'2. It may deny both motions, in which case the verdict stands and the appeal is from the judgment entered on the verdict, assigning as errors both the refusal of judgment n. o. v. and errors of law in the trial as heretofore. The appellate court may reverse the judgment and remand the case for a new trial or direct the entry of judgment n. o. v.

'3. The trial court may grant both motions in which event the judgment n. o. v. is appealable and on reversal the case must be remanded for a new trial pursuant to the trial judge's order on the alternative motion. In such a case the trial court's order should specify that the new trial is granted only in the event of reversal of the judgment n. o. v., since the unconditional grant of a new trial will vacate the judgment n. o. v.

'4. The trial court may grant the motion for judgment n. o. v. and deny the motion for a new trial, stating its reasons. On appeal the appellate court may...