Appeal from Superior Court, Pima County; J. Smith Gibbons, Judge.
Motion denied and appeal dismissed.
Lesley B. Allen and Victor M. David, both of Tucson, for appellant.
Clifford R. McFall, of Tucson (Thomas Chandler, of Tucson, of counsel) for appellees.
La Prade, Justice. Stanford, C. J., and Udall, J., concur.
La Prade, Justice.
[68 Ariz. 105] Judgment in favor of appellees was entered on February 11, 1948, following a verdict in their favor. Within the time prescribed by the rule appellant filed a motion for a new trial followed by an amended motion and a second amended motion. In the latter motion it was alleged and not controverted that the court reporter who had reported the evidence was temporarily incapacitated and that appellant would not be able to perfect his record within ninety days from the date of giving notice of appeal. The motion for a new trial was denied. Notice of appeal from the judgment was filed April 12th. By timely order the time within which to transmit the record on appeal was extended for the full ninety-day period. See section 21-1817, Arizona Code Annotated 1939. After the appeal was lodged in this court appellant applied for an order extending the time within which to secure a transcript of the evidence, setting up that the court reporter was still unable to prepare the transcript due to physical illness. On this showing an order was made extending the time within which to complete the record on appeal to December 1, 1948. On this date appellant filed a motion requesting this court to direct the trial court to grant him a new trial on the ground that
he cannot be heard on appeal from the judgment rendered due to the fact that it then and now appears that no transcript of reporter's notes can ever be had because of permanent disability of the reporter. It was also shown on sufficient proof that no other person could transcribe these particular notes. It thus appears that appellant through no fault of his is unable to secure a transcript of the reporter's notes of the evidence and will be precluded from effectually prosecuting his appeal since he asserts that only by a complete transcript of the testimony can he present the issues of his appeal.
On December 4th appellees moved to dismiss the appeal for the reason that no abstract of record or transcript or brief had been filed within the extended time, and also filed a motion to dismiss or strike the motion petitioning this court to direct the trial court to grant appellant a new trial. Appellees resist the application of appellant upon the ground that jurisdiction to entertain and dispose of motions for a new trial is vested in the superior court in the first instance, and that it is not within the jurisdiction of the Supreme Court to grant [68 Ariz. 106] appellant a new trial except when the judgment or orders appealed from have been reviewed upon appeal. The point made is that the Supreme Court has no original jurisdiction to entertain an original motion for a new trial.
The question presented by the application has never been considered by this court. The authorities are not agreed on the question. From cases cited in Snell v. Neilson, 50 Cal.App. 27, 194 P. 530, many of which are considered in Richardson v. State, 15 Wyo. 465, 89 P. 1027, 12 Ann.Cas. 1048, and in the note to that case found in 12 Ann.Cas. 1056, there seems to be a divergence of opinion on the question. Many cases hold that where appellant through no fault of his own is unable to prepare a record on appeal due to illness or death of judge or court reporter a new trial is properly awarded in order that substantial justice may be done. Others rest upon the circumstance that the statutes do not define the causes for which a new trial may be granted thereby permitting a freedom of interpretation as to what is a cause for a new trial. Still others depend upon the fact that appellate courts in such jurisdictions have independent powers to grant new trial. See Anno. 13, A.L.R. 102. Some courts have flatly denied relief under the circumstances under consideration for the reason that all presumptions are in favor of the regularity of the proceedings in the trial court and that the party in whose favor the judgment was rendered should not be deprived of it and subjected to the expense and hazards of a new trial. To hold otherwise would be to transfer appellant's misfortune to appellee. See Alley v. McCabe, 46 Ill.App. 368, Id., 147 Ill. 410, 35 N.E. 615; Morin v. Claflin, 100 Me. 271, 61 A. 782.
There is no occasion for us to resort to general statements of the law applicable in different jurisdictions until we have first had access to our own Constitution and statutes. The question of jurisdiction is the matter of first consideration. This is governed so far as original jurisdiction is concerned by article 6, section 4 of the Constitution of Arizona, which so far as material reads:
"The Supreme Court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers. * * *"
"The Supreme Court shall have original and exclusive jurisdiction to hear and determine all causes between counties concerning disputed boundaries and surveys thereof, or concerning ...