Pope v. Olsen & Graf

ROSS, J. Appellant, plaintiff below, obtained judgment against appellee, defendant below. Appellee filed its motion for a new trial, which was granted. Prom the order granting the new trial, this appeal is prosecuted. Judgment was entered June 25, 1912. The motion for new trial was filed July 3,1912. A minute order, dated July 12th, set the hearing upon the motion for new trial for July 17, 1912. The hearing was not had on that date, but was continued, as was admitted in oral argument before this court, by mutual agreement until July’ 19th. July 18th appellee filed an amended motion for new trial. When the matter was taken up for consideration on July 19th, appellant moved to strike the amended motion for new trial, for the reason that it was filed out of time. Under paragraph 1473, Revised Statutes of 1901, the motion for new trial may be amended at any time before it is finally passed upon by the court, and such amendment, of course, would relate back to the date of 'filing original motion. The stipulation to take the motion up on the 19th of July, in legal contemplation at least, included the motion in its amended form. The stipulation was general and made in view of the statute allowing amendments. The contention of appellant, that, when appellee filed its amended motion, he was relieved from the binding effect of his. stipulation is without merit. A general appearance eannot be limited to or converted into a special appearance. . We think the continuances for the hearing of the motion for new trial were well within the terms of paragraph 1479, Revised Statutes of 1901, as amended by chapter 21, First Session State Legislature (Laws 1912), and that the court retained jurisdiction of the motion. An order granting a motion for a new trial is not a final judgment. It leaves the rights of litigants undetermined. The case stands as though it had never been tried. The order merely vacated the former judgment for the purpose of a new trial upon the merits of the original action. Spicer v. Simms, 6 Ariz. 347, 57 Pac. 610. The right of appeal being a statutory right, and no provision appearing in our laws authorizing an appeal from an [530] order granting a motion for new trial, the appeal herein should he dismissed. It is so ordered. FRANKLIN, C. J., and CUNNINGHAM, J., concur. NOTE.—As to validity and effect of judgments or orders nunc pro tv/no, see note in 4 Am. St. Rep. 828.