ROY W. SADLER, Appellant,
ARIZONA FLOUR MILLS COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, judge. Judgment affirmed.
Mr. V. L. Hash, for Appellant.
Messrs. Cunningham & Carson and Mr. Joseph T. Melczer, for Appellee.
[58 Ariz. 487] ROSS, J.
This is an appeal by defendant, Roy W. Sadler, from an order setting aside the verdict and granting the motion of plaintiff, Arizona Flour Mills Company, for a new trial on the grounds (1) that defendant and his attorney misconducted themselves in argument to the jury, and (2) that the verdict is against the weight of the evidence and contrary to law.
The verdict was returned into court on December 5, 1940, and, on motion of defendant, an order was made granting judgment thereon in his favor. On December 7, 1940, plaintiff filed its motion for a new trial, which was granted December 14, 1940.
[58 Ariz. 488] Defendant now contends that the motion for new trial was filed before the entry of judgment and that both it and the order granting the new trial were premature under the decisions of this court. He cites Ellis v. First National Bank, 19 Ariz. 464, 172 P. 281 and Gibson v. McLane, 17 Ariz. 61, 148 P. 288, 289. Since the decisions in these cases the law has been changed. The controlling statute now is section 21-1230, Arizona Code 1939 (Rule 58, Rules Civ. Proc.).
Defendant's objection to the appeal on the ground that the motion for new
trial was premature is without merit. We have frequently held it to be the duty of the court, under section 22, article VI of the state Constitution, to disregard any error or defect in pleading or proceedings which does not affect the substantial rights of a party. Arizona Cotton Ginning & Manufacturing Co. v. Sims, 29 Ariz. 198, 240 P. 341.
It should not be overlooked that the court may on its own initiative order a new trial at any time not later than ten days after the entry of judgment, upon any of the grounds specified in section 21-1307 (Rule 59 (d), Rules Civ. Proc.) and, when this section is read in connection with section 21-1301, it would seem that such power may be exercised by the court at any time after verdict, decision or judgment and for ten days after judgment. See Chesevski v. Strawbridge & Clothier, (D.C.) 25 F.Supp. 325.
Section 21-1301, or the part material to this case, reads as follows:
"21-1301. Statutory grounds. -- A verdict, decision or judgment may be vacated and a new trial granted, on motion of the aggrieved party, for any of the following ...