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Burton v. Valentine

Supreme Court of Arizona

November 22, 1943

CHARLES E. BURTON, Appellant
v.
ERNA VALENTINE, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. On motion for rehearing. Opinion of October 11, 1943, adhered to but portion thereof deleted, Reported at 60 Ariz. 518.

Mr. Henderson Stockton, Mr. Eli Goredezky, Mr. S. N. Karam and Mr. J. W. Cherry, Jr., for Appellant.

Mr. Anthony T. Deddens, for Appellee.

OPINION

STANFORD, J.

The appellant has submitted a motion for rehearing in this cause and exception is taken in particular, to the fact that this court has based its opinion, in part, on Section 21-1019, Arizona Code 1939, which reads as follows:

"At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct [61 Ariz. 29] the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury."

By reason of the court's use of that paragraph, it is the contention of the appellant that the court was in error because the paragraph of the code in existence at the time of the trial of this cause in the superior court was Section 3820, Revised Code of 1928, which reads as follows:

"Rulings, orders and instructions deemed excepted to. The giving, refusing or modifying of instructions, and every part of the charge given to the jury, and all rulings, orders and actions of the court in a case shall be deemed excepted to, without formal exception, and reviewable by the supreme court."

Not only is our attention called to this error, but the motion also sets forth the grievance of counsel that by the misuse of the paragraph of the code of 1939, and the court's comments thereon, a great injustice has been done to counsel for appellants. We accordingly hasten to rectify this error and we delete from the opinion rendered in this cause on October 11, 1943, the following portion:

"In respect to further instructions we cite Section 21-1019, A.C.A., 1939:

"'At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed [61 Ariz. 30] action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.'

"We find that the appellant submitted no instructions and practically all of the instructions to which objections have been made in this court were submitted by the appellee and marked 'given' by the trial court, and no objections were raised to them. Practically the whole case of the appellant is brought to this court by him on the instructions.

"In the case of Standard Oil Company of California vs. Shields, 58 Ariz. 239, 119 P.2d 116, Chief Justice Lockwood, late of this bench, in keeping with the usual law of our state in commenting on instructions, stated the following:

"'If any of the instructions were objectionable on the ground that they were ambiguous or did not fully state the law, defendants had a chance to object thereto before the jury retired to consider its verdict, and while it does appear that general objections were made to some of them, there is nothing in the record to show the particular point objected to nor the ...


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