185 P. 357 | Ariz. | 1919
This is an original proceeding praying for a writ of certiorari to issue to the superior court
■ In the petition it is alleged that judgment was ren- ' dered in said cause in favor of plaintiff on August 16, 1918; that thereafter, on August. 26, 1918, and within the time allowed by law, the defendants filed their motion for a new trial; that on October 29, 1918, the court entered an order granting the new trial; that under the law the court was without jurisdiction to grant the new trial, inasmuch as the motion was deemed denied within twenty days after the rendition of the judgment, “unless continued by order of the court or by stipulation,” which was not done.
Upon the showing made in the petition, the writ was ordered to be issued, and, in response to the order in the writ, the judge of the said superior court caused the clerk thereof to certify to this court all proceedings and records in said cause (No. 1589). The judge also, made a separate return, in which he suggests that the plaintiff in cause No. 1589 could have appealed from the order granting a new trial, and that therefore certiorari will not lie.
The point made by petitioner is that the motion for a new trial was by operation of law denied twenty days after August 16,1918, the date of the rendition of judgment,- no order of the court having been entered or stipulation made within the twenty days, continuing the hearing of the motion, and that the court in granting a new trial' was without, or exceeded, its jurisdiction. As sustaining his position, we are cited to Chenoweth v. Prewett, 17 Ariz. 400, 153 Pac. 420, Bigler v. Welker, 16 Ariz. 44, 141 Pac. 124, and Sawyer v. Huning, 20 Ariz. 357, 181 Pac. 172.
“It will not be permitted to take the place of an appeal or writ of error, even to correct judgments or other proceedings of a court in excess of jurisdiction. Our statute is framed with this idea of the province of the writ, and provides that it may issue when there is no appeal, nor, in the judgment of the court, any pláin, speedy, and adequate remedy.”
See, also, Stoddard v. Superior Court, 108 Cal. 303, 41 Pac. 278; Valentine v. Police Court, 141 Cal. 615, 75 Pac. 336.
In the return made by the judge of said court, it also appears that he is the successor of the judge who made the order granting the new trial, and that on January 6, 1919, the date of his induction, “cause
Now, if this case were here on appeal, the silent acquiescence of plaintiff in the order granting a new trial, and thereafter stipulating with adversary party in said case a day certain for trial, under the reasoning in Sawyer v. Huning, supra, would authorize the assumption on our part that the motion for a new trial was kept alive by stipulation or court order, and, if not, that petitioner was willing to waive, and did waive, any error of procedure in that regard.
We are asked by petitioner, in case we find he is not entitled to the writ of certiorari, that we consider his petition for a writ of prohibition. In this case the reasons that certiorari will not lie are equally applicable to prohibition; it being the settled law that prohibition may not be resorted to if a party has a plain, speedy, and adequate remedy by appeal. Valentine v. Police Court, supra.
The order will be that the writ be quashed and the case dismissed.
CUNNINGHAM, C. J., and BAKER, J., concur.