Arizona weekly citizen., 1886-03-20
PAULVS. SHAW.
= erei , the Argument of Counsel in
 ihc Motion for a New Trial.


 in favor of granting the motion. Ills . line of reasoning was about us fellows: | That the power to grant new trials is ill., | lareut to our courts under the terri | torial laws. That the court possesses the ] power to grant or refuse new trial at any time within ten dsys after the ser vice of a written notice of the filing of nndIncs. and tine fact that our law for cuuteslirg elections was En act by it. sell made ID difference. IL was under the general provisions Oi the Practice Act so far as new trials we're concerned And that WAS tine law notwithstGnding the fact that the court could % Y try suck a contest at special tern. Iul- portion Was supported by citation ui authorities, where the question arose under statutes providing that election contests should be tried at .Le first sue ceeaIug term of the court. The authaI- it.,s, hs cited by ine gentleman, held tast though the contest had not been led at sad first term, such fact did not cause the jurisdiction of the court tu fall. He cOuce iel thst under olr terri tUIlal statute there was n appoai D ti.- case at bar from the uiEinent O. the District Court, and that 1T dad been 70 held 5y the Supreme Court oi ArlzJu... BHt tLat had nothing to % WI-A tbe question uf the power of the court to grant g. Lew trial m such cases. Iue decision of the Supreme Court nf inc
 Sfate Of California reported In the Il
 FHrf.far,.T. l.sr.F,rs H~ Q case, cOnstrnIng statute similar ta tne
 Ariz6hs statute, the court held that the
 proceedings were summary in their character and must be tried at a special
 term, and that upon the entry Ui tLe
 judgment the power of tEe court over
 the subject matter was gone, and that lt
 had no power to grant new trials. Coun-
 srl cuutendsd that the case Ot Decker
 son vs. Van Horn ia 2 California
 Report stated the rule correctly, and
 since the Supreme Cour: ut CaAiornla
 NGs at variance ID its opinion ID these
 cases, he would appeal from the divided
 court Q; California to the judicial trlbu-
 nal of Pennsylvania. He cited the case
 oi shepherd vs. Gibson. where the Court
 of Sessions Of the city Uf Phlladel-
 pima had granted a rehesriug lu
 an election contest Case. This
 ls summary of the remarks Ol
 NIT. King. so far as relates to the argu-
 ment made by hlm, and embraces what
 WAS sad by him both al the afternoon
 aud evening session of the court. Al
 the cOpclus!On ot hls remarks, he made
 some ailusion to the voters of Pima
 county having been fAe victims of fraud
 etc. At th:s pOlut some demOnstrs-
 tions os applause was made by l.
 persons among the spectators, which wss
 promptly checked by Judge BaIIes. After his Honor had vaiCly eudeaver-d c. discover the offenders. by eating several
 persons forward and Cues.I lnIug then. under ath, aImonlsh-ii those presen;
 that the right t3 app.aud implied thr
 right to hiss, and -ucl e nluct however
 proper 1t might be m a beer cafien, Wa-
 no: to be tolerated iu court ot Justice
 and are petition of It would be followed
 by 6n order to clear tue court room oi
 spectators.
 Yesterday afternoon a- o'clocl
 Mir. JeiiOrds began Li- argument Iu
 opposition tu the motion for a uew ;Iiai
 Briefly stated kis points were as follows.
 He c"nteuded that tne proceedings we're
 summary in their nature, outside c.
 the course Of the common Law, and Un- der Hu act ot the Territorial Legislature
 providing a remedy tO contest the cleo tiol ut officers whose offices were created under a territorial act That It was not part of the general common Law jurIs- dIctl pn of the court. and that the court could only proceed under the provisions
 ot the act ID trying case of this kind.
 That 1t Was one of those matters for
 which the legislature might have proyid-
 ed any other tribunal to try the issue bau
 II seen it. That in contested election
 cases the pleadings were called toy
 names different from the Headings iu
 the Practice Act. That tue act prIyid-
 ing for cuntestIng elections provided the
 entire machinery by which the court could proceed. That 1t provided for a special term of the court to be held by
 the District Judge, which was to b,
 called In a particular way. That 1t did
 not leave # open for the court tO pro
 ceed generally under the clvil Practice Act, but provided the method oi proce- Gure by which the special term of th. court should be governed ID trying thi- special class of eases. That the Su- preme court of ArlzOUa having held tLG; there was no appeal from the judgment there could be no motion for a ueN trlal, for the reason that wherever tbe power existed tO gran; oT refuse new trIal tha: the parties could appeal from
 the order O. the Judge granting or de. nylng the motion for Dew Ir'Gi and thus. in an appeal from an order macs afttr the judgment. tue whole Case could be taken tO the appellate couTt for r-- examination, where no appeal could h, had from the !udRment-rull, no matt, how serious the errors apVearent on tbe face ot tine record might be. That tn PennEy !vauis case ot Shepherd V. GIb- bons, cited by counsel for the motion, was rendered by justice of the Court ot Sessions of the city of Phl!adelT uia and had DtTcr been reviewed Tn an ap- pcllate court. That counsel bad brought no case decided by court of last resort, excepting the case of Dickenson vS. Van Horn, ID the California report. which had been oyer-ruled by the later decis lon m the 2i California report before Arizona adopted the present law for de teIminlng election contests.
 That in the c-ses where II WAS iecId- | ed that the jurisdiction of the court did l not fall. because the election contest 1 was not determined at the first succeed | ing term of the court but would go over were under statutes where the court | had jurisdiction to try those cases at | general terms, and not where the court | wOuld he required to cali a special term m special or particular way Mir | Campbell than began his argument hy | taking tine case in the r. California an authority cited by AIr. kiug) and stating | that ID that case no mut'ou for a nev | trIAl had been made m the court below. | and the qnest'On of a new ;r.al cOnli | not have possibly arisen before tie Su- prcme court, and the mention of a new i trial by Justice Crockett WAS a mere | ohiter dictum. He further called Rt- teuti1n to the fact that one of the jus. | ticvs. m hi- opinion iB that case. dis. | tinctiy said there could no new ;rial iu 4 the matter. Mir. Campbell proceeded | to discuss the siatuses cf California re- | lating 10 election contests and the civil | Practice Act. After comparing and au- alyslnG each. he sta'ei that au election | contest was intended Co be a summary | proceeding. That the statute of | Arizona does not provide for | the safe keeFing Of the balo!s beyond | the period of six months. That the. i-s ,nF f',a 1.orrl