APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Order granting new trial reversed and cause remanded.
Mr. J. E. Morrison and Messrs. Cunningham & Carson, for Appellant.
Messrs. Sloan, Holton, McKesson & Scott, for Appellees.
[37 Ariz. 523] LOCKWOOD, J.
Young Mines Company, Ltd., a corporation, hereinafter called plaintiff, brought suit against Citizens' State Bank, a corporation, and E. S. Wakelin, hereinafter called defendants, to recover the sum of $5,768 for money had and received. Defendants by their answer set up the statute of limitations; that the money in question was retained under instructions from plaintiff, and an estoppel by subsequent conduct. The case was tried before a jury, which returned a verdict in favor of plaintiff for the amount sued for. After judgment was rendered on the verdict, defendants moved for a new trial, which motion was granted, the court specifying in the order that it was granted on the following grounds: (a) Because of errors of law occurring at the trial and during the progress of the case; (b) because the court erred in refusing to grant defendants' motion for an instructed verdict; (c) because the court erred in its instructions to the jury; and (d) because the verdict and the judgment of the court is not supported by [37 Ariz. 524] and is contrary to the evidence in the case. From this order granting a new trial as above set forth plaintiff has appealed.
A motion for a new trial is addressed to the sound discretion of the trial court, and if granted, every presumption is in favor of the action of such court. Power v. Fairbanks, 146 Cal. 611, 80 P. 1075; 4 C.J. 782, and note. Where an order granting a motion for a new trial is general in its terms, it will
be affirmed if it could properly have been granted on any of the grounds assigned. Huntsman v. First Nat. Bank, 29 Ariz. 574, 243 P. 598. When, however, the court specifies in its order the precise reasons it was granted, we are necessarily confined to those reasons in passing upon the order. Millar v. Madison Car Co., 130 Mo. 517, 31 S.W. 574; Anderson v. Chrisman, 37 Okl. 73, 130 P. 539.
We have examined the entire record carefully, and without going into details, are of the opinion that the trial court in entering its order did itself an injustice, so far as the first three grounds upon which the order is based are concerned. Nowhere in the record does it appear that the court erred during the trial and progress of the case in its rulings on questions of law. Every ruling in so far as we can determine was strictly proper. Nor did it err in refusing to grant defendants' motion for an instructed verdict. This motion was made at the close of plaintiff's case. The evidence at that time showed the receipt by defendants of money belonging to plaintiff, and that it had not been paid to the latter. This was sufficient to sustain a judgment for money had and received.
It is urged that there was an improper joinder of parties defendant, in that since they did not jointly receive the money in question, while an action would lie against either of them for money had and received, they could not be joined in the same action. We [37 Ariz. 525] think the rule claimed by defendants is the correct one. Simmons v. Spencer, (C.C.) 9 F. 581; Denman v. Richardson, (D.C.) 284 F. 592. The point, however, should have been raised either by special demurrer or by a plea in abatement, and if not so raised, it is deemed waived. Sections 3776, 3777, Rev. Code Arizona 1928. And an objection of this kind not raised by demurrer or answer cannot be urged for the first time on appeal. Cooper v. Holder, 24 Ariz. 415, 210 P. 690. It does not appear the matter was ever presented to the trial court, and we therefore decline to consider it here.
Nor did the court err, at least as against defendants, in its instructions to the jury. They were fully as favorable as the latter had any right to ask. The order cannot be sustained on any of the three grounds above discussed.
We come, then, to the last ground, which is that the verdict is not supported by and is contrary to the evidence in the case. The rule in regard to a conflict in the evidence is far different in the trial court from that in the appellate court. So far as this court is concerned, we will sustain a verdict of a jury, or the findings of the trial court, if any reasonable evidence can be found in the record to support them, and we will not consider the weight of the evidence or conflict thereon. Leadville Mining Co. v. Hemphill, 17 Ariz. 146, 149 P. 384; City of Bisbee v. Thomas, 24 Ariz. 614, 212 P. 190.
On the other hand, the trial court not only may, but must, on an assignment of this character, pass on the weight of the evidence and if, after a full consideration of the case, in its discretion it believes that the verdict was contrary to the weight of the evidence, and that substantial justice has not been done between the parties, it is its duty to set aside the verdict and grant a new trial. Huntsman v. First Nat. [37 Ariz. 526] Bank, supra; Dennis v. Stukey, ante, p. 299, 294 P. 276. In considering this ground assigned by the court for making its order, we must therefore resolve every conflict in the evidence in support of the order, just as we follow the same rule in support of a verdict or findings which are before us for review. Pengilly v. Case ...