Moran v. Jones , 75 Ariz. 175 ( 1953 )

WINDES, Justice

(dissenting).

Unfortunately, 1 am unable to agree with the majority opinion herein.

The sole question presented is whether the court committed reversible error by calling twenty-four jurors and allowing each of the defendants the statutory peremptory challenges. It must be conceded there was no formal objection to the action of the trial court. It must also be conceded that under the provisions of Rule 46, Rules of Civil Procedure, Section 21-936, A.C.A.1939, objection must be made before one is entitled to be heard in this court.

Appellant, in attempting to show such objection as a foundation for his appeal, moved in the court below to amend the record, which motion was denied. He then moved in this court to correct the record and supported his motion by affidavits, which motion is by this court properly denied. It is conceded that all we have before us from which may be gathered an objection to the action of the court is the trial court’s statement as to some informal discussion in chambers between court and counsel. In holding that the statements of the trial judge concerning what transpired in chambers meets the requirements of Rule 46, supra, and constitutes a basis upon which to predicate an appeal, the court quotes a portion of such statement. For a more complete presentation of the record there should be added to the quotation the following statements of the trial judge:

“I am not going to change the record in the case. The record speaks the truth. It is actually what happened, that is, the record as made. * * * I do remember that it was injected in the case by counsel when someone said, ‘How many should be called in the jury box?’ and I listened to counsel, and I recall that we more or less decided to call 24, and anticipated that if it was not the correct number you would make an objection and we would look into it at the time. * * * I knew I was going to look into that aspect of it when and if objection was made at the time the jury was actually called into the box. * * * I know that I didn’t rule upon it. I, in the courtroom, selected the Code section and had it marked, anticipating that there would be some objections and that I would study it. I didn’t look at any books prior to going in there. I think it came up spontaneously. * * * My impression from our discussion was that that was the number to be called, and I felt that I would hear counsel on it if you made a formal objection. * * * I don’t know what impression you got from what took place. I thought 24 was the number of jurors, to be called, and thought if you later decided to make a record on it or change your mind, I would consider it, and I was prepared to consider arguments on it.” (Emphasis supplied) Transcript of Proceedings, September 29, 1951.

It seems quite clear from the above that the court never did, nor was it ever called' upon to make a final ruling on the question. It was plainly left open for future consideration, deliberation and ruling in the event counsel decided to, as the court says, “change your mind” and make a record on it.

In reversing this case the court has lost sight of and ignored the fundamental purpose of Rule 46, which is well stated in. Volume 5, Moore’s Federal Practice, 2d ed., page 1902, as follows:

“* * * (i) to apprise the court of the litigant’s position so that the court in the furtherance of justice might correct its ruling where shown to be in error; and (2) to permit an opponent to obviate the defect where possible. * * * It is still necessary for the party to make it clear to the court that he objects to the court’s action, and to state the grounds on which he bases his objection, in order that the defect may be obviated, if possible, * * *

Such a record as we have before us shows indisputably that the trial court was given no opportunity to intelligently consider the matter. The plaintiff made no protest that called for such consideration. The judge said (which is the only record we have) that if his action had been questioned he would have gone into the matter. The holding that error may be based upon such an informal discussion in chambers opens an avenue for the entrapment of both the judge and the opposing counsel. If error was committed, certainly no opportunity was given either court or counsel to obviate the same, which is the basic reason for the enactment of Rule 46. In Bucy v. Nevada Construction Company, 9 Cir., 125 F.2d 213, 218, the court pointed out the object of this rule in the following language:

“* * * As pointed out in the' discussions of Rule 46, the function of an exception was to bring pointedly to the attention of the trial judge the importance of the ruling from the standpoint of the lawyer and to give the trial judge an opportunity to make further reflection regarding his ruling. Proceedings of Institute, Washington, D.C., 1938, p. 87. In justifying the rule it was stated ‘the exception is no longer necessary, if you have made your point clear to the court below.’ Proceedings of Institute, Cleveland, 1938, p. 312. ‘But of course it is necessary that a man should not spring a trap on the court * * *, so the rule requires him to disclose the grounds of his objections fully to the court.’ Proceedings of Institute, Washington, D.C., 1938, p. 124; see also p. 87.” (Emphasis supplied.)

Again in Monaghan v. Hill, 9 Cir., 140 F.2d 31, 33, we find this statement:

“Appellee bases his motion on Rule 46 of the Federal Rules of Civil Procedure : * * * The purpose of informing the court of supposed error is to give it an opportunity to reconsider its Vuling and to make any changes deemed advisable, * * * .”

A reversal of this case gives the plaintiff a gratuitous new trial without his having properly presented the matter to the lower court. The judgment should be affirmed.

LA PRADE, J., concurs in the dissent of Judge WINDES.