APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Messrs. Armstrong, Kramer, Morrison & Roche, for Appellant.
Messrs. Stockton & Perry, Mr. E. G. Frazier, Mr. Stanley A. Jerman and Mr. Thomas P. Riordan, for Appellee.
[40 Ariz. 400] LOCKWOOD, J.
This is the second time this case has come before us, our opinion on the first appeal being found in Durkee-Thomas Corp. v. Doherty, 37 Ariz. 457, 295 P. 302. On that appeal we reversed the judgment entered for plaintiff at the trial in the superior court and sent the case back for a second trial, at which a verdict was again returned in favor of plaintiff and judgment entered thereon, and it is from this last judgment that this appeal is taken.
A reporter's transcript was filed, but on motion of plaintiff it was stricken from the records by this court, and the case therefore comes before us solely upon the judgment-roll and record.
There are three assignments of error. The first two are to the effect that the court erred in permitting the reporter's transcript of the evidence of a witness taken at the first trial to be read at the second one. This objection is based upon the ground that the witness had been summoned by plaintiff to testify before a notary public in California on oral interrogatories for the purpose of having such deposition used at the second trial, but that, although the witness appeared before the notary, plaintiff refused to take his testimony. It is contended that, since it appeared from our opinion on the previous appeal that the witness in question had not been permitted to testify upon certain matters which this court held relevant and material, his evidence, if it had been taken by the notary for use on the second trial, would have been materially different from that given at the first trial [40 Ariz. 401] and read from the transcript at the second trial, and for this reason such transcript was inadmissible.
We have examined carefully the entire record presented to us on this appeal, and, so far as we can find, the only references made to the evidence and deposition on which the two assignments of error are based are in the motion for new trial and in the minutes of the trial court. The minutes on this point read as follows:
"Now comes evidence on behalf of the plaintiff . . . testimony of George A. Davis is read in evidence . . . testimony of George A. Davis given at former trial is read in evidence (that part not heretofore read) . . . defendant introduced the following evidence: depositions of . . . George A. Davis are read in evidence."
It is practically the universal rule of law that, when the ruling on a motion for new trial is dependent on the evidence given or offered on the trial, and such evidence is not in the record, the ruling on the motion cannot be reviewed. In re Yoakam's Estate, 103 Cal. 503, 37 P. 485; Quarring v. Stratton, 85 Wash. 333, 148 P. 26; 4 C.J. 550, and
notes. Nor are statements made by counsel in a motion for new trial admissible to prove the truth of such statement. Scheffel v. Scheffel, 37 Tex. Civ. App. 504, 84 S.W. 408.
As will be seen from the foregoing extracts from the minutes, which contain the only references made in the record to the matters upon which the first two assignments of error are based, both the testimony of George A. Davis taken at the previous trial and his deposition were admitted in evidence. It does not appear that any objection was made to either one of these or that the deposition did not contain every matter which would have been material for the presentation of defendant's case. Such being the fact, we are unable to consider the assignments regarding such testimony and depositions.
[40 Ariz. 402] The only other objection is that the trial court allowed as part of the costs in favor of plaintiff, not only a jury fee for the second trial, but also one for the trial in which the judgment reversed by this court as above was rendered, and it is urged that, when a case is appealed to this court and by us reversed and remanded for a new trial, the appellant, even though the case go against him on the second ...