Harry T. MAYO and Hazel E. Mayo, husband and wife, Appellants and Cross Appellees,
Harry G. EPHROM and Dorothy M. Ephrom, hushand and wife, and Jack M. Rayner and D. Fay Rayner, husband and wife, Appellees and Cross Appellants.
[84 Ariz. 171] Miller & Raineri, Phoenix, Whitney & LaPrade, Phoenix, of counsel, for appellants.
Shute & Elsing, Phoenix, for appellees.
This is an appeal by plaintiffs below from an order granting defendants a new trial. Defendants, Harry G. Ephrom and Dorothy M. Ephrom, husband and wife, and Jack M. Rayner and D. Fay Rayner, husband and wife, cross-appealed from the effect of said order as denying their motion for a judgment notwithstanding the verdict by operation of law.
The complaint alleged fraud was perpetrated by defendants in the sale of a 320-acre farm to plaintiffs near Maricopa, Pinal County, Arizona. The purchase price of $80,000 ws to be paid as follows: $11,000 in cash, an assignment of a contract of sale of property in California valued at $11,870.20, and the balance of the purchase price of $57,129.80 was evidenced by a note bearing interest at 5% to be paid in annual installments of $8,161.40 or more, on or before February 1st of each year commencing with February 1, 1953; and the note was secured by a mortgage on the farm executed by plaintiffs. The defendants filed a counterclaim against plaintiffs to foreclose the mortgage.
The case was tried before a jury and a verdict was rendered in favor of plaintiffs
in the sum of $70,000. The trial court directed a verdict in favor of defendants on their counterclaim and found the amount due was the sum of $75,732.28, together with the sum of $17 for title expense and the sum of $7,574.93 as and for attorneys' fees. The trial court ordered judgment [84 Ariz. 172] for the counterclaimants in the sum of $13,324.21, being the difference between the verdict for plaintiffs and the amount the trial court found as being due counterclaimants, and ordered that a foreclosure be had for this amount. The order for judgment was for the difference in the amount of verdicts in the sum of $13,324.21. The verdict of the jury in favor of plaintiffs was in excess of the prayer for damages alleged in the complaint. The defendants moved for judgment or in the alternative for a new trial. After argument at the hearing of the motions the trial court denied motion of plaintiffs for permission to amend the prayer of the complaint for damages to conform to the evidence, and entered the following order:
'It is ordered that the amount of the verdict which is in excess of $48,581.10, to-wit: $21,418.90, be remitted, within ten days, and if so remitted, then motion for new trial is denied. Order if the sum of $21,418.90 is not remitted within ten days, then motion for new trial is granted.'
Plaintiffs did not remit and a formal written order was entered granting a new trial on all the issues on the following grounds, as well as others; that the jury returned a verdict in an excessive amount, and that the verdict was the result of passion and prejudice.
Plaintiffs' assignments of error are briefly summarized as follows: (1) the verdict for plaintiffs was fully sustained by the evidence; (2) the trial court erred in directing a verdict on the counterclaim; (3) error was committed in allowing attorneys' fees because if fraud was committed attorneys' fees could not be collected, or in any event the jury should have found the amount due, if any were due; and (4) the court erred in granting a new trial on all the issues for if a new trial was warranted it should have been limited solely to a question of damages. Defendants, in support of their cross-appeal, assigned as error the refusal of the trial court to grant their motion for judgment for the reason the evidence is insufficient to prove that the acts of the defendants constituted fraud.
The grounds set forth in the formal order granting the new trial are causes warranting the granting of a new trial as provided in Rule 59(a), Rules of Civil Procedure, 16 A.R.S. It is a well-settled rule of law that the granting of a new trial is largely within the discretion of the court, and that the appellate court will not disturb the ruling except for an abuse of discretion. The discretion in this sense is a legal discretion, based upon reason and law. Where the showing for a new trial is insufficient both in form and substance there is no discretion to be exercised. Sharpensteen v. Sanguinetti, 33 Ariz. 110, 262 P. 609. See, also, Southern Pac. Co. v. Shults, 37 Ariz. 142, 290 P. 152; Southern Arizona Freight Lines v. Jackson, 48 Ariz. 509, 63 [84 Ariz. 173] P.2d 193; Zevon v. Tennebaum, 73 Ariz. 281, 240 P.2d 548; Kotsonaros v. State of Minnesota, 79 Ariz. 368, 290 P.2d 478.
In Sadler v. Arizona Flour Mills Co., 58 Ariz. 486, at page 490, 121 P.2d 412, at page 413, we stated:
'The granting of a new trial is different from an order refusing a new trial, for in the former the rights of the parties are never finally disposed of as in the latter they may be. The courts accordingly are more liberal in sustaining an order for new trial than where it is denied.'
We have carefully examined the transcript of the evidence to determine whether the trial court abused its discretion in entering the order for a new trial. The record is replete with improper remarks by the plaintiff, Harry T. Mayo, and his attorney. A reference to a few of these remarks will suffice. During argument on ...