Burmister v. City of Prescott, Civil 2957

Citation297 P. 443,38 Ariz. 66
Decision Date01 April 1931
Docket NumberCivil 2957
PartiesELMA T. BURMISTER, as Administratrix of the Estate of R. H. BURMISTER, Deceased, Appellant, v. CITY OF PRESCOTT, E. C. SEALE, Mayor, and WILLIAM BYERS, P. H. MILLER, Members of the Common Council of Said City, and GEORGE M. PAYNE, Tax Collector of the City of Prescott, Arizona, Appellees
CourtSupreme Court of Arizona

APPEAL from a judgment of the Superior Court of the county of Yavapai. Albert M. Sames, Judge. Appeal dismissed.

Messrs Favour & Baker, for Appellant.

Messrs Cornick & Crable and Mr. J. Andrew West, for Appellees.



This is an action for a writ of mandamus against the City of Prescott and certain officials, thereof, hereinafter called appellees, to compel such officials to issue to the Continental Oil Company, a corporation, hereinafter called the company, a license to operate an automobile service station on certain property in said city owned by the estate of R. H. Burmister, deceased. Elma T. Burmister, as administratrix of said estate, whom we shall hereafter call appellant, joined with the company in applying to the superior court of Yavapai county for the writ of mandamus. Judgment was rendered in the trial court in favor of appellees, and the company accepted such judgment, and has taken no appeal therefrom, the administratrix as above being the sole appellant.

The facts in the case, so far as they are necessary to its determination, are in no way in dispute, and may be stated as follows. The Burmister estate owned lots 21 and 23 in block 2 of the City of Prescott, and during the month of March, 1929, the administratrix and the heirs of Burmister entered into a contract of sale of a certain portion of said lots to the company. Under this contract the company agreed to make the purchase under certain conditions. These conditions, so far as material to this action, were as follows: (a) The company should apply to the city of Prescott for a license permitting it to operate a gasoline service station on the premises in question, the administratrix joining in such application if she so desired; (b) if the permit was refused a proper suit should be instituted to force the issuance of the permit; (c) either party might seek a review of the decision of the trial court in the appellate court; and (d) if the litigation were unsuccessful, the company was not bound to make the purchase.

Application was duly made by the company, the appellant not joining therein, to the common council of the City of Prescott for a license as aforesaid, which license was refused, and thereafter the company and appellant joined in this action for a writ of mandamus to compel its issuance. Appellees moved to strike the complaint as to the administratrix for the reason that she was not an applicant for the license and had no interest in the subject matter of the litigation and was not the real party in interest, and also demurred to the complaint for the same reasons. The motion and the demurrer were both overruled, and the case was heard before the trial court on its merits, and the writ of mandamus denied. From the judgment and the order denying the motion for a new trial, the administratrix has appealed.

The case presents a very interesting proposition on its merits going to the authority of the City of Prescott to refuse to grant licenses for the conduct of automobile garages and service stations within its boundaries, under the circumstances appearing in the record, but we are of the opinion we should not and cannot consider that question, as the case must be decided on matters of procedure. As we have stated, the action was one to compel the City of Prescott to issue a license to the company. The appellant had made no...

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9 cases
  • Johnson v. Superior Court, 5168
    • United States
    • Arizona Supreme Court
    • November 23, 1948
    ... ... Burmister v. City of Prescott, 38 Ariz. 66, 297 P ... 443, and were ... this state of the Federal Rules of Civil Procedure, 28 ... U.S.C.A., in 1940 petitioners have now ... ...
  • Mendelsohn v. Superior Court in and for Maricopa County, 5803
    • United States
    • Arizona Supreme Court
    • October 7, 1953
    ...and quite another in sanity hearings, etc. For this reason, Justice Lockwood's construction of the phrase in Burmister v. City of Prescott, 38 Ariz. 66, 297 P. 443, is not in point--the fact situation is too dissimilar. Apart from its syntactical and sociological setting the phrase has no m......
  • Strobel, Matter of
    • United States
    • Arizona Supreme Court
    • April 18, 1986
    ...in some other proceeding of the application of a legal principle established in the decree appealed from. Burmister v. City of Prescott, 38 Ariz. 66, 69, 297 P. 443, 444 (1931) (emphasis in original); see also Matter of Gubser, 126 Ariz. 303, 306, 614 P.2d 845, 848 The success of Grace Gree......
  • Ackel v. Ackel
    • United States
    • Arizona Supreme Court
    • December 3, 1957
    ...loss due to the judgment, we hold he is not a party aggrieved. In re Roseman's Estate, 68 Ariz. 198, 203 P.2d 867; Burmister v. City of Prescott, 38 Ariz. 66, 297 P. 443. The only interest appellant had was that of a parent of the minor defendants, yet at no time did he move to revoke the a......
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