73 P. 443 | Ariz. | 1890
In this case the appellees recovered judgment against the appellants in the sum of one hundred and fifty dollars, interest and costs. There are four errors assigned : 1. That the court erred in not allowing the defendants a trial by jury; 2. That the court erred in not admitting evidence excepted to at the time; 3. That the court erred in giving judgment for plaintiffs, the plaintiffs not having a preponderance of the evidence; and 4. That the court erred in not granting a continuance.
We will now consider the error first assigned,—viz., that the court erred in not allowing the defendants a trial by jury. The record discloses the facts that the defendants did demand a jury, and deposited the jury fee. But it also appears that after the demand for a jury, which was on November 11, 1887, the defendants moved the court, on the twenty-fourth day of January, 1888, to dismiss the suit of .plaintiffs for want of
We have considered this question without regard to the question raised by the motion to strike out the statement of facts. We have done so partly that the statute may have a construction known to the bar, to serve as a guide whenever the question may come up in the practice. It is more pleasant to decide a ease on its merits than on a question arising on the transcript. But we cannot disregard the requirements of the statute, made to be observed in cases presented to this court. We are fully aware that the statute is new and not entirely clear, and for that reason we are inclined to consider the merits, unless our attention is called to a material defect in the record.
The appellees move the court to strike out the statement of facts for the reason that the record shows the same was not filed during the term of court, nor any order made of record for filing thereafter. The ease was tried below on the eighth day of March, 1889. The term ended May 6, 1889.
Judgment below is affirmed.