Arizona republican., 1899-06-03

amendatOry thereof. This chapter be-
 gins with paragraph S46, which is as
 follows: An appeal or writ of error
 may be taken tc the supreme court from any final judgment of the district
 court rendered in civil cases Con- corning the mode of perfecting an ap- l peal, paragraph S49 provides: An
 appeal may, in cases where an appeal i is allowed, be taken during the tenn
 of the court at which the final jUdg-
 me1t is rendered by the appellants giving notice of appeal, etc. By par
 agraph 875, it is required that the
 transcript shall in all cases contain copy Of the final judgment, notice Of
 appeal, etc. Neither in this chapter nor in the amendments is there any provision authorizing an appeal to the supreme court except from a final judgment of the district court. In History Co., vs. DOugherty (Ariz) %
 Pac. 649, the court construed para graphs 593 and S46 in pa1f materia, as follows: Our construction of the
 statute on the subject of appeals, then,
 is that an appeal from the final iudg-
 ment of the district court in all civil
 eases is allowed; that, upon such ap-
 peal from a final judgment, this court
 may review any intermediate order in-
 VClving the merits, and necessarily af-
 fecting the judgmsnt-ordeTs grant
 ing or refusing new trials, sustaining
 or overruling demurrers, or affecting
 any substantial rights of the parties
 and may render such judgment or
 make such order therein as may be
 FTOPertO save the rights of the par
 ties In Began vs. Pignataro CArizD
 29 Pac. 652, which was an appeal from
 an Crder Of the court below, disso,ving
 a temporary restraining order, he
 supreme court reiterated it's former
 holding and said: Tn the case of His
 tory Co., vs. Dougherty (deciiled at this
 term), we held that this court has ap-
 pellate jurisdiction in appeals from
 final judgments. The order here ap-
 pealed from is net a final judgment;
 hence, this court klas no jurisdiction,
 and the appeal is dismissed. In more recent decision, the case of His
 tory Go. vs. Dougherty has been dis
 approved, but, as eXaminationIwil show, only for the purpose of placing a limitation upon the right of appeal from final judgments. Paragraph S46
 was held to give the right of appeal only in cases within the jurisdiction Of the supreme court, and an appeal was dismissed by the court because 5he in dispute, as shown by the judgment, was not within it's jurisdic- tion. Canada del Gro Mines vs. Col lins (Ariz.) 36 Pac. B. Upon a fuil l consideration of cur statutes on the | subject we are led to the conclusion i that the only appeal which they con template is from final judgment, and | that no order of the district court is | except it be in the nature Of | a final judgment. The question then | remaining to be considered is whether | pr not the order setting aside the iudg- | ment and granting a new trial is a | final Judgment, for the determination i of this point will also be decisive of | our right to review the courts action | in dissolving the attachment If the court had nc power to make the order 1t the time it was made, the judgment 'endered would be void, and an appeal would lie to review it. Trullenger vs roGd, , Or. 36; Deering vs Creighton .Or) 3S Pac. 710. Mr. Chief Justice Fuller, in Hume vs. Bowie 14S U. 5. 245, in commenting upon an order of he court vacating a judgment, said:
 The question involved is enc of power,
 or if the court had power to make the order, when it was made, then it was lot final judgment, as it merely va ;ated the former judgment for the purpose Of a new trial upon the merits II the original actiCn. If the court lad no jurisdiction over that judgment, he order would be an order in a new and in that view final and / eVleWaole.' It is contended by c0un- ( el for the appellant, in this case, thaJ he court below was without power to ct aside it's judgment and grant new rial upcn a motion that was filed hree days after the rendition of the judgment. Our statute provides, it is ( rue, that all motions for new triaIs, n arrest of judgment or to set aside 2 judgment, shall be made within two { avs after the rendition of the verdict T judgment if the term of court shall ontinue so long Par S36. This { t2tute, however, comes to us from , 'eXas, and the supreme court of thar tate. passing upon a similar question, t: aid: It does not necessarily follow : hat me new trial was improperly -ranted because the motion for the CIV trial was not made until more R han two days after verdict, because acts might have existed that would ] ave made it proper for the court 70 I rant the new trial, although the mo- \ ion was not made until more than < Wo days after verdict Wells Vs. Ielville, 70 Tex. 337. Ana, ind9- S endently of this construction, it is q s uIe generally recognized by appellate ] ribuna.s that courts possess an un- mited power over their own iudg- s nents and orders in respect to their ! acatiOn and modification until the s lose Of the term at which they are B Freeman on judgments See. s 9. We conclude, therefore, that lne $ ourt below had full power to set aside 5 he judgment and award a new trial. [ lat the order so made was not final 1 ldgment; that the action is still pend-