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Baldwin v. Shumway

Supreme Court of Arizona

October 15, 1951

BALDWIN et ux.
v.
SHUMWAY et ux

Motion to dismiss appeal granted and appeal dismissed.

Norman H. Whiting, of Show Low, for appellants.

W. E. Ferguson, of Holbrook, for appellees.

La Prade, Justice. Udall, C. J., and Stanford, Phelps and De Concini, JJ., concur.

OPINION

La Prade, Justice.

Appellees filed motion to dismiss the appeal on the ground that the same was not taken within sixty days from the entry of judgment as provided for in Rule 72, as amended, effective April 1, 1950, Sec. 21-1801, A.C.A.1939, Cum.Supp. It appears from the record that judgment was entered on December 7, 1950. On January 31, 1951, appellants (defendants below) filed with the clerk of the court their motion for a new trial on the ground of newly discovered evidence. At the time of filing this motion, they also filed a notice to the effect that they "will present their motion for a new [72 Ariz. 400] trial based on an affidavit, copies of which

Page 469

are hereto attached * * * on February 6, 1951." On the day noticed, February 6, appellees (plaintiffs below) filed their objections to the motion for new trial, the objection being on the grounds

"I

"That the motion was not made within ten days after rendition and entry of judgment herein;

"II

"That the leave of the Court was not obtained before the filing of said motion, nor at all, nor has any notice to obtain leave of Court to file such motion been served on Plaintiffs or their attorney, but Defendants filed motion and gave five days' notice ...


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