11 P. 108 | Ariz. | 1886
Lead Opinion
This suit was commenced before a justice of the peace of the town of Seaford, Pima county, in 1879, and judgment rendered, by default, November 15, 1879, for the sum of $295. The cause was thereafter regularly appealed by defendants to the district court of Pima county. In 1881 an act was passed by the territorial legislature creating the county of Graham out of portions of the counties of Pima and Apache. By this act all actions, of whatever kind or nature,' pending in the district and probate courts in Pima or Apache counties, where the subject-matter or property in controversy is situated within the new county of Graham, shall be transferred to the proper court of said county for trial, after the same shall have been established, and it is hereby made the duty of the respective clerks of the counties of Pima and Apache, immediately upon the appointment and qualification of the district and probate courts of said county of Graham, to transmit to the clerks of the corresponding courts in the -county of Graham all papers and pleadings in said actions, together with a complete certified copy of all the entries relating thereto appearing upon the records of their respective courts, when the title to real estate is involved; and in all actions pending in said respective courts in the counties of Pima and Apache wherein one of the parties is a resident of the county of Graham, where both parties consent thereto, the same shall be transferred to Graham county for trial. Laws 1881, p. 156.
Under this act the district court of Pima county, on the application of the plaintiff, and on the sixth day of October, 1883, ordered the cause to be sent to the district court of the county of Graham for trial.
The defendants and appellants insist that this order was unauthorized, because on the oral application of the plaintiff, and without their knowledge. This is the first ground of error alleged. It is unnecessary now to decide whether these objections, where a party is entitled to insist upon them, should prevail or not. There is abundant in the record to show that these defendants consented to the transfer from Pima to Graham. There was no objection made in either county to the transfer. Upon the contrary, the record discloses the fact that the defendants appeared in the district
The district court, in the findings of fact filed, recites that “the cause came on regularly for trial the twelfth day of November, A. D., 1883, before the court without a jury, having been duly waived by the respective parties; Hereford & Zabriskie appearing as attorneys for plaintiff, and S. M. Franklin for defendants.” In the motion for a new trial that was made by the defendants immediately after the rendition of judgment against them, the point is not made or raised that the district court of Graham county did not have jurisdiction. From the foregoing facts it is too plain to admit of doubt that the defendants not only made no objection to the trial of the cause in Graham county, but consented thereto. Under such circumstances, they cannot now at this time be permitted to say that the transfer of the cause to Graham county was unauthorized. Truesdail v. Ward, 24 Mich. 117; Cook v. Perry, 43 Mich. 623; 5 N. W. 1054; Berresford v. Gedes, L. R. 2 C. P. 285; 1 Burrill, Pr. 69-71.
The next point urged for error is that the district court was guilty of an abuse of discretion in not continuing the cause. If we were satisfied that such was the fact, we should not hesitate to order a new trial; but courts of last resort should be very careful in setting aside a judgment for this cause. It is urged by the eminent counsel who now look after the case in this court for the defendants that under paragraph 3, c. 48, § 195, Comp. Laws, the district court should have granted a new trial. This is the provision of the Compiled Laws with reference to new trials; and in the paragraph cited it is provided that a new trial may be granted for “accident or surprise which ordinary prudence could not have guarded against.” The facts upon which the application in this regard was founded, as stated in the affidavit of Mr. Franklin, at that time the attorneys for the defendants, were that the defendants were not aware that the cause had been set for trial; that one of the defendants was sick, and that the other was in attendance on a grand jury in Cochise county. The reason that the defendants were not aware
The next ground of error alleged is that there were no findings of fact filed by the court below in accordance with Comp. Laws, c. 48, § 182. But there certainly was a finding of fact. It may not be very full or complete, but-the nature of the case hardly required that it should be. The district court certainly undertook and supposed it had complied with this statute, and found both the facts and conclusions of law separately. Neither in the motion for new trial nor otherwise was the point now made raised, or the judge asked to make his findings of fact more complete. The court in its findings, after reciting the submission of the cause on the appearance of the parties by their respective attorneys, and the waiving of trial by jury, then states, “and from the evidence introduced the court finds the facts as follows, to-wit.” Then follows a brief statement of the facts, and then the findings conclude as follows: “And as a conclusion of law from the foregoing facts the court finds that plaintiff is entitled to judgment for the sum of $422.25, and costs of suit, and that judgment be entered accordingly.” The authorities cited by the learned counsel for defendants, to the effect that there must be a finding of facts have no application here; for in this case there was a finding of facts, as the foregoing shows. Douglass v. State, 43 Wis. 395.
The judgment is affirmed.
Barnes, J., concurring.
Dissenting Opinion
(dissenting.) I dissent from the opinion of the majority of the court, for the reason that defendants did not have a fair chance for the presentation of their case to the court; that there was an abuse of.discretion in the district judge in not granting the continuance. It appears that the cause was placed on the calendar Saturday, the tenth day of November, 1883; that the attorney for defendant was called away by important business, but returned on Monday, the 12th, in time for session of the court; that, on inquiry, that morning, plaintiff’s attorney told him the cause had not been set for trial; that on or about 3 o’clock p. m. of said day the cause was called by the court for trial; that the court was informed of foregoing facts; that there is no record upon the minutes of the court showing that said
These facts constrain me to say there was evidently an abuse of discretion, and therefore I cannot concur.