29 P. 649 | Ariz. | 1892
This was a suit in the court below upon an alleged contract of purchase by the appellee from the appellant of a complete set of the literary works of Hubert Howe Bancroft, then in the course of publication by appellant. The price alleged to have been agreed upon, and which was sued for in this suit, was $170.50. There was judgment for the appellee in the court below.
It is objected to our consideration of this appeal that this court has not jurisdiction, because the judgment appealed from is not one from which an appeal is allowed, in that the “matter in dispute.” does not exceed two hundred dollars. The several statutory provisions bearing upon the question of appeals to this court are as follows: Section 1869 of the Revised Statutes of the United States, (of our organic act) is: “'Writs of error, bills of exceptions, and appeals shall be allowed from the final decisions of the district courts to the supreme court of all the territories, respectively, under such regulations as may be prescribed by law.” Section 592, Revised Statutes of Arizona, 1887, is: “The supreme court shall have appellate jurisdiction in all cases where the matter in dispute exceeds one hundred dollars, where the legality of any tax, toll, or impost, or municipal fine is in question, and in all criminal cases amounting to felony, or on questions of law alone. ’ ’ Section 593 provides that “the supreme court shall have juris
But with this view the difficulty of the attempt to reconcile the provisions of sections 592 and 593 with each other, as well as with the provisions of section 846, still remains. Section 592, standing alone, we think, confers upon this court appellate jurisdiction in all eases, provided that, when the subject of litigation is capable of pecuniary computation, the matter in dispute must exceed in value or amount one hundred dollars, unless the legality of a tax, impost, toll, or municipal fine is drawn in question. Conant v. Conant, 10 Cal. 253, 70 Am. Dec. 717; Dumphy v. Guindan, 13 Cal. 29. And here it may be noted that there has evidently been an error in transcribing this section. After the words “one hundred dollars,” there should be a semicolon, and the clause, “or questions of law alone,” should read, “on questions of law alone.” See cases above cited, and Comp. Laws Ariz., sec. 2339. If the amount in section 593 were one hundred dollars, instead of two hundred dollars, the repugnancy between sections 592 and 593 would be reconcilable. We can conceive of no reason why this difference in amount should have occurred. By reference to the Compiled Laws of 1877, it will be seen whence the provisions of the Revision of 1887 wjere derived. Comp. Laws 1877, sees. 2339, 2340. The expression, “where the matter in dispute exceeds one hundred dollars,” has in the Revision of 1887 (sec. 592) been added to section 2339 in the compilation of 1877. In re-enacting section 2340, “one hundred dollars,” there appearing, was made “twro hundred dollars” in section 593 of the Revision of 1887. We cannot avoid the conclusion that an unintentional error has crept in, and that “two hundred dollars,” in section 593 of the Revised Statutes of 1887 ' should read “one hundred dollars/’ So reading it, our construction of sections 592 and' 593 is, that section 592 confers
Still the conflict between the sections 592 and 593, as construed, and section 846, as to the amount in dispute, remains. Section 846 provides for appeals from the final judgments in all civil cases. Section 592 limits the right to certain cases. The right sought to be given by these provisions is to have an erroneous judgment of the district courts reviewed and corrected by the supreme court. Section 846 gives the right in all cases. Section 592 is inconsistent with that, and limits the right. In such a ease, applying a well-known rule of statutory construction, we construe in favor of the enlarged right, rather than of the limited one. Our construction of the statute on the subject of appeals, then, is that an appeal from the final judgment of the district court in all civil cases is allowed; that,upon such appeal from a final judgment, this court may review any intermediate order involving the merits, and necessarily affecting the judgment,—orders granting or refusing new trials, sustaining or overruling demurrers, or affecting any substantial rights of the parties,—and may render such judgment or make such order therein as may be proper to save the rights of the parties. Of course, in special proceedings, this right of appeal may be expressly limited, as we decided in Bishop v. Perrin, ante, p. 350, 29 Pac. 648, (at this term).
The contract of purchase was in writing. Appellee answered by the general denial; and; second, that the alleged contract in writing was had and obtained by means of the imposture, deceit, and fraud of the appellant. Appellee alleges in his answer that on or about the seventeenth day of April, 1888, he was approached by an agent of appellant, who represented
We would not disturb the finding of the lower court if there was simply a conflict of evidence. The defendant testified that appellant’s agent called on him, and stated the intention of appellant to publish a history of Arizona, in which was to be incorporated biographies of prominent and distinguished men of the territory, and that he (appellant’s agent) was getting data therefor; that the-agent asked him if he would take a copy; that the agent pretended to be making sketches—to be writing—at the time; that appellee said he would take a copy, and started to leave the room, when the agent recalled him and said, “Wait a moment, and I will get you to sign an order;” that the agent thereupon wrote it, handed it to appellee, who thereupon signed it without noticing it, and shoved it back. Long, the agent, testified that he met appellee in Prescott, and stated to him that he desired to gather information to be used by Bancroft in the completion of his history of Arizona; that appellee gave him some general information; that he did not agree or represent that the biography of appellee would be published in the work; that he there explained the character and scope of the Bancroft series, and solicited his subscription therefor; that he explained that the complete work consisted of thirty-nine volumes, twenty-eight of which were then issued; that nothing was said in regard to his subscription for one volume; that appellee then designated the style of binding he wanted; that he (the agent) then sat down in Mr. Dougherty’s presence, and filled out the contract, style of binding, and terms of payment; that appellee then took the contract, looked it over, and signed it. It was admitted at the trial that the thirty-one volumes had been consigned by appellant to appellee, and that appellee refused to accept them. The contract itself was introduced in evidence. There is some other testimony in the record, but it is all incompetent, and need not be considered. In the cross-examination appellee admits that the agent explained to him that the work consisted of a number of volumes, embodying the history of all the states and territories and of Old Mexico. Taking the statements of appellee as absolutely true, we think the court should have found for the appellant.
Appellant complains of the rejection of testimony of certain witnesses, to the effect that appellant’s agent, about the time of the transaction in this case, solicited subscription for the entire thirty-nine volumes, and not for any less. This was irrelevant, and was properly rejected. The judgment of the district court for Yavapai County is reversed, and that court is directed to grant a new trial and to sustain the demurrer to appellee’s second answer.
Gooding, C. J., and Wells, J., concur.