[81 Ariz. 186] Jerry Giesler, Rexford Eagan, Beverly Hills, Cal., W. Francis Wilson and Kent A. Blake, Phoenix, for appellant.
Jennings, Strouss, Salmon & Trask, Phoenix, for appellees.
LA PRADE, Chief Justice.
This court disposed of the appeal in this case by written decision on July 10, 1956, which opinion is reported in 81 Ariz. 33, 299 P.2d 629. Therein it is disclosed that the trial court on May 11, 1954 entered judgment in favor of plaintiff on the verdict. The next day defendant filed two motions, one for judgment n. o. v. and the other for a new trial. This procedure is authorized by Rule 50(b), Rules of Civil Procedure 1956. On May 17, 1954 the court entered the following order:
'Order, on stipulation of counsel, fixing time for hearing on defendant's motion for judgment notwithstanding the verdict (and) for new trial on May 28, 1954, at 2:00 p. m. in Div. 2.'
Thereafter, argument was commenced on May 28, and continued and completed on
the morning of May 29, and the following order was entered:
'11:10 a. m. Order taking the defendant's motion for judgment notwithstanding the verdict (and) for new trial under advisement.'
No ruling was made on this motion for new trial although the court, on July 26, 1954, granting the motion n. o. v. said:
'* * * but for such order the Court would grant defendant's motion for a new trial for the reason that the court is of the opinion that defendant was deprived of a fair trial by the conduct of plaintiff's counsel before the jury and the cumulative effect thereof, including the voir dire examination of the jury and the comments of counsel during examination of witnesses; * * *.'
We reversed the judgment that had been entered n. o. v. in favor of defendant, and directed that judgment be entered for plaintiff on the verdict.
Appellee (defendant) in his motion for a rehearing asserts that we were in error in ordering that judgment be entered for appellant (plaintiff) and in holding that defendant's motion for a new trial was denied by operation of law. Other reasons [81 Ariz. 187] are asserted but we think they are without merit.
We stated in the former opinion (81 Ariz. 33, 299 P.2d 630) that
'* * * The court did not rule upon the motion for a new trial. However, after the expiration of 20 days from the rendition of judgment, under the provisions of Rule 59(e), Rules of Civil Procedure, 1956, section 21-1308 A.C.A. 1939, said motion for a new trial is deemed denied by operation of law.'
'* * * While the trial court did not deny the motion for a new trial, it was denied as above stated, by operation of law. * * *'
We are now of the opinion that these conclusions are erroneous. Rule 59(e), Rules of Civil Procedure 1956, provides as follows:
'Time for determination of motion. Motions for new trial shall be determined within twenty days after rendition of judgment, and if not so determined shall be deemed denied, unless continued by order of the court, or by stipulation.'
Rule 59(e) is not a new rule. This is the same procedural rule which was Section 21-1308 in the 1939 Code and Section 3850 in the 1928 Code. It was been interpreted by this court in several cases. The rule does not say that a motion for new trial is denied automatically if not ruled upon in twenty days. It says that the motion shall be 'deemed denied, unless continued by order of the court, or by stipulation.'
In List v. Wilkinson, 23 Ariz. 262, 203 P. 333, 334, a motion for new trial was made on November 10th. Thereafter, the motion was continued by the court, and on January 15th it entered an order taking the motion under advisement. On January 25th the motion was granted. This was more than two months after is had been filed. It was urged that the statute for automatic denial, which was the same as the present Rule 59(e), operated to deny the motion. The court held that it did not, and said:
'* * * we hold that the order of the court, taking the motion for new trial under advisement, was in effect an order of continuance such as is contemplated by the statute, and that the court did not lose jurisdiction to rule thereon thereafter.'
That case and its holding has never been overruled expressly or by implication, or even modified so as to affect its plain meaning. In Bryan v. Inspiration Consol. Copper Co.,27 Ariz. 188, 231 P. 1091, a judgment was rendered June 5, 1922. A motion for new trial was filed within the [81 Ariz. 188] time permitted, and continued ...