29 P.2d 150

ABRAHAM ACKERMAN, Appellant, v. SOUTHERN ARIZONA BANK AND TRUST COMPANY, a Corporation, Appellee.

Civil No. 3397.Supreme Court of Arizona.
Filed February 12, 1934.

1. PLEADING. — In suit for accounting, defendant, having answered original complaint, was not required to answer amended complaint, since original answer extended to latter (Rev. Code 1928, § 3787).

2. NEW TRIAL. — Denial of new trial for “new evidence” held not error, since such evidence, to authorize new trial, must be newly discovered and must be evidence not known to or discoverable by movant by exercise of reasonable diligence before trial.

[1] See 21 Cal. Jur. 188; 21 R.C.L. 588 (7 Perm.Supp., p. 5078).

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.

Mr. Abraham Ackerman, in pro. per.

Mr. James R. Dunseath, for Appellee.

ROSS, C.J.

Abraham Ackerman commenced this suit against the Southern Arizona Bank Trust Company demanding an accounting of the defendant. The defendant’s answer consists of a general denial. At the plaintiff’s request a jury was called in to determine the facts. The verdict went against plaintiff and judgment was entered accordingly. The plaintiff has appealed. He presents his grievances by the following assignments:

“1. The trial court erred in denying the judgment by default filed by appellant, for the reason that appellee did not answer the first amended complaint for accounting and judgment thereon.

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“2. The trial court erred in denying appellant a new trial April 15, 1933, when appellant brought forth new evidence proving with a copy of his bank savings account book, showing that appellant received only $500.00 between the years 1921 and 1924. According to the said bank’s false statements, appellee received $9,478.68 from the said years 1921 to 1924, of appellant’s money.”

Section 3787 of the Revised Code of 1928 fully and completely answers assignment number one. It reads:

“§ 3787. Original answer stands to amended complaint. Where the defendant has answered, and the plaintiff shall afterward amend his pleading, the defendant need not answer a second time, but the original answer shall extend to such amended pleading, so far as applicable.”

The defendant had answered plaintiff’s original complaint and such answer extended to the amended complaint.

The refusal by the court to grant a new trial “when appellant brought forth new evidence” was not error. The evidence authorizing the granting of a new trial is newly discovered evidence and evidence that was not known by the movant or by the exercise of reasonable diligence could not have been discovered before the trial. Sharpensteen v. Sanguinetti, 33 Ariz. 110, 262 P. 609.

The trial court heard all the evidence and in its refusal to grant appellant’s motion for a new trial approved of the jury’s verdict. Both the court and jury were of the opinion plaintiff should not succeed.

No error appearing, the judgment is affirmed.

LOCKWOOD and McALISTER, JJ., concur.

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