Newhall v. Porter

62 P. 689 | Ariz. | 1900

DAVIS, J.

The plaintiff in error, Charles K. Newhall, claiming to he the surviving partner of a partnership alleged to have existed between himself and one George Smith until the. latter’s decease, and as such to have been in the possession of partnership assets consisting of a herd of cattle, some horses, and saddles, brought an action in the court below against the defendant in error, J. N. Porter, to recover damages for the alleged wrongful conversion by him of the aforesaid property. Porter, denying the claim of partnership, and averring the ownership of the property to have been in the said George Smith individually, based his right to the control and possession thereof upon the fact of his being the duly qualified and acting administrator of the estate of the said decedent. Several defenses were pleaded in the ánswer, but the main issue at the trial was upon the question as to the existence of the partnership relation between Newhall and Smith. There was no written agreement, and the plaintiff relied upon evidence of the conduct and declarations of the parties to show the partnership. The cause was tried before the court, sitting without a jury, and a judgment was rendered in the defendant’s favor. A motion by the plaintiff for a new trial was denied, and he brings the ease here for review.

Numerous assignments of error are made. Seven of these are predicated upon rulings of the lower court in the admission or rejection of evidence. Upon referring to the. motion for a new trial in this case, we find the same to have been based upon the following grounds: 1. That the judgment is contrary to the law and the. evidence; 2. That the judgment is not ■ supported by the facts proved and admitted at the trial; 3. That the court’s findings of fact are not sustained or warranted by the evidence; and 4. That the eonelusions of law are not according to the facts, and the findings of fact are not supported by the evidence. Our statute provides that “every motion for a new trial shall be in writing and shall specify generally the grounds upon which the motion is founded. . . . Upon the general ground that the court erred in admitting or rejecting evidence, the court shall review all rulings during the trial upon questions of evidence. Upon the general ground that the court erred in charging the jury and in refusing instructions asked, the. court shall review all the charge and every portion thereof and the ruling refusing any instruction asked, and it shall not be necessary in the motion to set out the particular portion alleged as erroneous. Upon the general ground that the evidence does not sustain the judgment or the-verdict, the court shall review the sufficiency of the evidence in the case to maintain the 'judgment or verdict, without more particular specification in the. motion.” Act No. 21, Laws 1893. The law thus contemplates that errors occurring at the trial shall first be reviewed by the lower court upon the motion for a new trial. In the ease before us the rulings of the trial court in the admission and rejection of evidence were not urged as a ground for new trial. If they constituted error, we must presume that the court below would, upon application, have corrected it by granting a new trial. The rule laid'down by this court in Putnam v. Putnam, 3 Ariz. 182, 24 Pac. 320, that it will not review any alleged error which might have been good ground for a new trial in the court below, unless the same, shall have been presented to such court by motion for a' new trial, has been uniformly adhered to. Greer v. Richards, 3 Ariz. 227, 32 Pac. 266; Svea Ins. Co. v. McFarland, ante, p. 131, 60 Pac. 936. As was said in the case of Pútnam v. Putnam, supra: “To hold that this court may consider errors occurring at the trial which were not urged upon motion ' below as grounds for a new trial, and which, therefore, could not have been considered by the court below, is inconsistent and illogical.” The rulings of the trial court upon questions of the admissibility of evidence which are here complained of .not having been first brought to the attention of that court by the motion for a new trial, any error based thereon will now be disregarded. The eighth assignment of error relates to a question as to the sufficiency of the verification of the answer, which appears never to have been presented to the trial court, and cannot, for the first time, be raised here.

It is assigned for error that the lower court failed to make any findings of fact or conclusions of law in this case. The record shows a general finding upon the issues in favor of the defendant, and. we have repeatedly held that a judgment based upon such finding is valid under the act of the legislature approved March 16, 1897 (act No. 22, Laws 1897). Daggs v. Hoskins, 5 Ariz. 300, 52 Pac. 357; McGowan v. Sullivan, 5 Ariz. 334, 52 Pac. 986; Main v. Main, ante, p. 149, 60 Pac. 888.

The remaining assignments of error, in effect, raise the question whether the evidence sustains the judgment. It was essential to the plaintiff’s recovery in this case that he establish his partnership relation with the said George Smith in the ownership of the disputed property. An examination of the evidence upon this vital point shows it to be meager, conflicting, and far from satisfactory, as supporting the claim of partnership. If the district court held that the plaintiff failed to show the existence of a partnership, as we are led to presume, the evidence affords ample justification for such a finding, and the supreme court will not disturb it. There appearing no error in the record, the judgment of the. court below is affirmed.

Street, C. J., and Sloan, J., concur.