DocketNumber: Civil No. 2815.
Citation Numbers: 278 P. 62, 35 Ariz. 343
Judges: LOCKWOOD, C.J.
Filed Date: 6/11/1929
Status: Precedential
Modified Date: 1/12/2023
H.S. Anderson, hereinafter called plaintiff, brought suit against F.E. Rayner, hereinafter called defendant, for damages for the conversion of certain personal property by the latter. Defendant answered, and also filed a cross-complaint for malicious prosecution by plaintiff of defendant in a certain criminal action wherein defendant was charged with larceny of some of the property involved in the present action of conversion. Plaintiff moved *Page 345 to strike the cross-complaint on the ground that the matters set up therein were not proper cause of cross-complaint, which motion was by the court granted. The case then proceeded to trial, and resulted in a verdict against defendant in the sum of $1,000. A motion for a new trial was duly filed and overruled by the court, and defendant has brought the matter before us for review.
There are two assignments of error, one going to the action of the court in striking out the cross-complaint and the other to the denial of the motion for new trial. We will consider them in their order. While modern practice in regard to counterclaims and set-offs is extremely liberal, it is generally held that a counterclaim for a tort cannot be set up in an action for another tort. 24 R.C.L. 827; Lovensohn v. Ward,
The second assignment of error is that the court abused its discretion in refusing to grant a new trial on the ground of newly discovered evidence. The trial judge should not grant a new trial on the ground of newly discovered evidence unless it appears not *Page 346
merely that there is such evidence, but also that there is a reasonable possibility it might, if presented, change the verdict. In re Emerson's Estate,
No error appearing in the record, the judgment of the trial court is affirmed.
McALISTER and ROSS, JJ., concur.