Burney v. Lee, Civil 4536

• Court: Supreme Court of Arizona
• Writing for the Court: LOCKWOOD, C.J.
• Citation: 129 P.2d 308,59 Ariz. 360
• Parties: CARRIE BURNEY, Appellant, v. JOHN C. LEE, et ux., Appellees
• Docket Number: Civil 4536
• Decision Date: 28 September 1942

129 P.2d 308

59 Ariz. 360

CARRIE BURNEY, Appellant,
v.
JOHN C. LEE, et ux., Appellees

Civil No. 4536

Supreme Court of Arizona

September 28, 1942

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. On motion to dismiss appeal. Motion granted.

Mr. V. L. Hash, for Appellant.

Mr. John W. Ray, and Messrs, Cox & Cox, for Appellees.

OPINION [129 P.2d 309]

[59 Ariz. 361] LOCKWOOD, C.J.

John C. Lee and wife, plaintiffs, brought suit in the superior court of Maricopa county against Carrie Burney, defendant. Judgment was rendered in favor of plaintiffs, and defendant appealed to this court. Plaintiffs moved the court to dismiss the appeal on the ground that it was not taken within sixty days from the entry of judgment. Defendant resists the motion on the ground that she had six months within which to take the appeal.

The question is whether the appeal was timely. If it was, the motion should be denied. If it was not, it should be granted, for the time permitted to take appeals may not be extended. Sec. 21-327, Arizona Code 1939. Section 3661, Revised Code 1928, reads as follows:

"Time for taking appeal. An appeal may be taken from a final judgment of the superior court in a civil action, or special proceeding commenced in such court, [59 Ariz. 362] at any time within six months after the rendition of such judgment, and from any other judgment or order at any time within sixty days after the making of such order."

The Supreme Court of Arizona in 1939 adopted the following rule, which was carried forward into the code of 1939 as section 21-1801:

"Appeal to the Supreme Court. -- When an appeal is permitted by law to the Supreme Court, it shall be taken by notice filed with the superior court within sixty (60) days from the entry of the judgment or order appealed from, as provided by these rules."

It is contended by plaintiffs that this rule superseded section 3661, supra. It is insisted by defendant that the rule did not and could not supersede the statute above set forth and that the time allowed for appeal is that set forth in the statute, and not that provided in the rule. The real question raised is whether the supreme court had the right to adopt the rule in question, notwithstanding the statute. If it did, the appeal must be dismissed. If it did not, the motion should be denied. The question is of such great importance to the practice of law in Arizona, involving as it does the question of the right to make rules of pleading, practice and procedure, that we think it best to depart from our ordinary custom of determining motions without written opinions, and to examine the question of the rule-making power de novo.

Article 3 of the Constitution of Arizona reads as follows:

"Distribution of Powers. The powers of the government of the state of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others."

[59 Ariz. 363] Article 6, section 1, is in this language:

"(Courts.) -- The judicial power of the state shall be vested in a Supreme Court, superior courts, justices of the peace, and such courts inferior to the superior courts as may be provided by law."

It would appear from a reading of these two sections that if the power to make rules of practice and procedure governing the courts is a judicial one, that power is given by the Constitution exclusively to the courts. If, on the other hand, it is purely legislative in its nature it would apparently follow that the power rests solely in the legislative branch of the government.Let us examine the nature of this power. It has been held almost unanimously from time immemorial that courts have the inherent power to prescribe rules of practice and rules to regulate their own proceedings in order to facilitate the determination of justice, without any express permission from the legislative branch. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300; Rule 2, Dall. 411, 1 L.Ed. 437; Byers v. Smith, 4 Cal.2d 209, 47 P.2d 705; People v. Callopy, 358 Ill. 11, 192 N.E. 634; State v. Roy. 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1; Ernst v. Lamb, 73 Colo. 132, 213 P. 994; De Camp v. Central Arizona L. & P. Co., 47 Ariz. 517, 57 P.2d 311, 313.

Our own decisions on this point are apparently somewhat in conflict. In De Camp v. Central Arizona L. & P. Co., supra, we have said:

"... This power is judicial and not legislative in its nature, as a general superintendence over this subject seems to be properly within the judicial province, and has always been so considered...."

While in Re City of Phoenix, 52 Ariz. 65, 79 P.2d 347, 352, we use the following language: [59 Ariz. 364]

"... If, in the proper exercise [129 P.2d 310] of this judicial power, it should be necessary, merely as auxiliary thereto and for the proper exercise of such power, for the courts incidentally to perform some acts which are, strictly speaking, legislative in their nature, such as the making of rules of procedure the better to carry out their constitutional powers, this would not be an invasion of the Legislative Department of the government...." (Italics ours.)

The language in the latter case, however, designating the rule-making power as legislative was used merely as an illustration and is,...