Bolen v. Superior Court of Pima County

• Decision Date: 02 May 1912
• Docket Number: Civil 1251
• Citation: 14 Ariz. 31,123 P. 305
• Parties: CATHERINE BOLEN, DAVID JOHN BOLEN, WILLIAM H. BOLEN, FREDERICK C. BOLEN and MARY J. WILSON, Petitioners v. THE SUPERIOR COURT OF PIMA COUNTY, STATE OF ARIZONA, and HON. W. F. COOPER, Superior Judge of Said Court, Respondent
• Court: Arizona Supreme Court

123 P. 305

14 Ariz. 31

CATHERINE BOLEN, DAVID JOHN BOLEN, WILLIAM H. BOLEN, FREDERICK C. BOLEN and MARY J. WILSON, Petitioners v. THE SUPERIOR COURT OF PIMA COUNTY, STATE OF ARIZONA, and HON. W. F. COOPER, Superior Judge of Said Court, Respondent

Civil No. 1251

Supreme Court of Arizona

May 2, 1912

Original application for mandamus. Writ issued as to appeal of Frederick C. Bolen only.

The facts are stated in the opinion.

Mr Owen T. Rouse, for Petitioners.

Mr. W H. Sawtelle and Mr. W. M. Lovell, for Respondent.

OPINION

FRANKLIN, C. J.

This is an application for a peremptory writ of mandate requiring the superior court of the state of Arizona in and for Pima county, and W. F. Cooper, as judge thereof, to enter an appeal taken in the matter of the estate of D. J. Bolen deceased, upon the civil docket of the said superior court, to be called and disposed of in its regular order. An alternative writ was issued out of this regular order. An alternative writ was issued out of this court and made returnable on the twenty-sixth day of April, 1912, and on the day specified therein the respondent appeared by his counsel and made his return to the writ. The petitioners appeared by their counsel and demurred to the return on the ground that the facts therein set forth were not sufficient in law to constitute a return to the alternative writ.

It appears from the petition that prior to the admission of Arizona as a state there was pending in the probate court of Pima county the matter of the estate of D. J. Bolen, deceased, in process of administration. That on January 5, 1912, a decree of distribution was made and filed in the matter of said estate, and on January 17, 1912, Frederick C. Bolen, one of the above-named petitioners, considering himself aggrieved by the decree of distribution, filed an affidavit in lieu of bond on appeal, as provided in paragraph 1948 of the Revised Statutes of Arizona of 1901, but took no action to have a certified transcript of the papers and proceedings relating to the decision or order made and transmitted to the clerk of the district court. The matter thus stood upon the fourteenth day of February, 1912, the date of the admission of Arizona as a state. On April 6, 1912, Frederick C. Bolen for himself and on behalf of Catherine Bolen, David John Bolen, William H. Bolen, and Mary J. Wilson petitioned the superior court of the state of Arizona in and for Pima county, and W. F. Cooper, judge of said court, to docket an appeal from the probate court of Pima county in the matter of the estate of D. J. Bolen, deceased. The judge of that court denied the petition without assigning any reason, but evidently because in his opinion that court had no jurisdiction of the matter. Th respondent is his return, it may be briefly stated, presents two reasons why the peremptory writ should not issue:

1. That no appeal was pending for the reason that the attempted appeal was not perfected by filing the affidavit in lieu of the bond as provided in paragraph 1948 of the Revised Statutes of Arizona of 1901 (Civil Code), but that, in order to perfect the appeal, it was incumbent upon the petitioners to cause a certified transcript of the papers and proceedings relating to the decision or order appealed from to be transmitted to the clerk of the district court, together with the appeal bond or affidavit in lieu thereof on or before the first day of the next term of such court.

2. That, conceding, the appeal was perfected by Frederick C. Bolen, he was not a party aggrieved, and could not be heard on appeal, for the reason that he had parted with all his interest in said estate before the order or decision appealed from was made, and the respondent exhibits in his return a copy of a bargain and sale deed of all his interest, real and personal, in said estate to substantiate his contention.

The provisions of the Revised Statutes of Arizona of 1901 that affect the matter under consideration are as follows:

"1948. (Sec. 740.) When the party who desires to appeal is unable to give the appeal bond, it shall be sufficient if he file with the probate clerk, within the time prescribed for giving such bond, an affidavit in writing that he has made diligent efforts to give such bond, and is unable to do so by reason of his poverty and such affidavit shall operate a perfection of the appeal in...