Peer v. O'Brien

CUNNINGHAM, C. J. This appeal presents for consideration the following order of the superior court, made on the twelfth day of December, 1918, in the case entitled “W. S. O’Brien, Plaintiff, v. George W. Peer, Defendant,” to wit: ■ “Upon the payment by defendant into this court, for the plaintiff herein, the sum of five hundred and 00/100 ($500.00) for delivery to said plaintiff or to [107] his attorneys, as cost, expenses, disbursements, and part of attorney fees incurred herein by plaintiff, as terms and conditions for the granting of defendant’s motion hereinafter set out, defendant’s motion to set aside a default entered in said action on the 3d day of November, 1917, also defendant’s motion vacating and setting aside the judgment entered in said action against said defendant on said 3d day of November, 1917, and also vacating and setting aside the judgment rendered against the garnishee, B. M. Martin, on said 3d day of November, 1917, and for leave for defendant to answer in said action upon the grounds specified in the motion herewith submitted, are granted.” “Dated this 12th day of December, A. D. 1918.” The notice of appeal designates the foregoing order as the exact order appealed to this court. The defendant, presenting his contentions as appellant in this court, finds no fault with the order other than with the requirement to pay five hundred dollars, imposed as a condition precedent to the granting of a new trial. Without any doubt, the defendant repudiated the order granting him a new trial whenever he refused to comply with the condition imposed. The result was that, the condition precedent having been repudiated, the motion was deemed denied to all intents and purposes at a subsequent time, unless continued by order of the court or by stipulation of the parties. (See paragraph 591, Civ. Code Ariz. 1913.) The defendant was injured in no possible manner by the condition in the order requiring him to pay in five hundred dollars. He refused to pay the money, and in that manner avoided injury from the imposition of the condition. His failure to meet the condition was, in effect, his refusal to accept a new trial as offered. Consequently a new trial was denied him, and this created a situation for his appeal from the judgment and from the refusal of a new trial. [108] A like situation arose in the trial court at the trial of Superior & Pittsburg Copper Co. v. Davidovitch, reported in 19 Ariz. 402, 171 Pac. 127. The defendant was offered a new trial on condition that it pay a certain sum of money into court, with which plaintiff could meet his expenses incident to a new trial. The defendant refused to pay the money, and appealed from the judgment and from the order refusing a new trial. One of the assignments of error covered the conditional offer of a new trial. Mentioning the said conditional order, we said: “The appellant has no grounds for complaint of the terms of the order in question, for the reason it, by its silence, effectively rejected the conditions prescribed. No possible harm in the circumstances could overtake appellant by means of the conditions attached to the order.” The order in the Davidovitch case set a limit of ten days within which the defendant was required to pay the money to the clerk of the court, else the motion for a new trial would stand denied. The order in this case set no limit of time within which the defendant was permitted to pay the five hundred dollars. He has effectively refused to make the payment required by the order. As a consequence, his motion for a new trial was therefore denied. Clearly, the defendant may have appealed to this court from the judgment and from the denial of his motion for a new trial, as was the practice in the Davidovitch case. In that event the conditional order would have become unimportant, because clearly not harmful. He may have met the condition by paying the sum of money within such restrictions as to negative a voluntary payment,- accepted the new trial, and thereafter may have taken such proceedings as would award to him a just accounting for the said money paid, if upon a consideration and [109] trial it should be determined that the defendant had been wrongfully required to pay the money. It is quite clear that an appeal is not allowed from an order granting a new trial on conditions whenever the party in whose favor the order is given refuses to perform the conditions imposed. In such case the conditional order ceases to be alive, and an appeal does not serve to lend vitality to it. If- we determine that the court should have granted a new trial without the condition, we have nothing to operate upon. The result of our order would then be to modify the language of the defunct order by striking out the condition; but the difficulty there is that the operative order is one denying a new trial, and not the order conditionally granting a new trial. The appeal must stand dismissed, for the reasons above stated. The appeal is dismissed.