Burney v. Lee, Civil 4536

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

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

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, 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It is contended by plaintiffs that this rule superseded section 3661, supra.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."

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:

"... If, in the proper exercise 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, strictly speaking, dictum. Upon a careful consideration of the authorities and of reason and logic, we think the rule-making power is essentially judicial in its nature. The majority of the states, however, have recognized for many years that notwithstanding the power is judicial, the legislature may exercise the rule-making power and that when it does the courts will bow to such authority, except in so far as the rules made by the legislature may "unreasonably limit or hamper the courts in the performance of the duties imposed upon them by the Constitution, or violate the provisions of article 3 of our Constitution." De Camp v. Central Arizona L. & P. Co., supra.

But regardless of whether the making of rules of procedure is strictly judicial or legislative in its nature, it is necessarily auxiliary to and only useful for the proper carrying out of the legitimate power of the judicial department. Just how far the rule-making power lies exclusively within the control of the courts, and just how far the legislative authority may interfere therein, it is not necessary for us to decide in this case, and we expressly reserve that matter for consideration if the necessity does later arise. The legislature, so far as it has the power to do so, has now left that matter exclusively to the Supreme Court by chapter 8 of the Session Laws of 1939, which reads as follows:

"An Act

"Relating to rules of pleading, practice, and procedure, and authorizing the supreme court to prescribe sich rules for all courts.

"Be it enacted by the Legislature of the State of Arizona:

"Section 1. Rules of pleading, practice and procedure. The supreme court, by rules promulgated from time to time, shall regulate pleading, practice and procedure in judicial proceedings in all courts of the state, for the purpose of simplifying the same and of promoting the speedy determination of litigation upon its merits. Such rules shall not abridge, enlarge or modify the substantive rights of any litigant. The supreme court shall cause the rules to be printed and distributed to all members of the state Bar of Arizona and to all persons who apply therefor, and they shall not become effective until sixty days after such distribution.

"Sec. 2. State bar advisory board. The state bar, or a representative group thereof selected by said bar, shall act as an advisory board and shall, either voluntarily or upon request of a majority of the judges of the supreme court, consult with, recommend to, or advise the court on any matter dealt with in the rules. Any member of the state bar or any private citizen may object in writing to any rule or part thereof and may request changes. The court shall consider such objections and requests as advice and information only and may act thereon at its discretion.

"Sec. 3. Existing statutes deemed rules of court. All statutes relating to pleading, practice and procedure, existing at the time this act takes effect shall be deemed to be rules of court and shall remain in effect as such until modified or suspended by rules promulgated pursuant to this act."

By section 1 of that act the legislature expressly states that the Supreme Court shall regulate pleading, practice and procedure in all courts of the state. The constitutionality of such an act has been before the courts at least thrice in this country. In the case of In re Constitutionality of Section 251.18, Wisconsin Statutes, 204 Wis. 501, 236 N.W. 717, 720, a statute practically identical with section 1 of chapter 8 supra, was under consideration, and it was urged that it was void in that it constituted a delegation by the legislature of its...