City of Flagstaff v. Babbitt

• Decision Date: 06 August 1968
• Docket Number: Nos. 1,CA-CIV,s. 1
• Citation: 8 Ariz.App. 123,443 P.2d 938
• Parties: CITY OF FLAGSTAFF, a body politic, Appellant, v. George BABBITT, Jr., Appellee. Ildefonso M. and Mercedes VALLEJO, husband and wife; Eunice B. Veazey; Raymond and Beulah Cunningham, husband and wife, and George Babbitt, Petitioners, v. The SUPERIOR COURT OF COCONINO COUNTY; the Honorable J. Smith Gibbsons; and the City of Flagstaff, Respondents. 458, 1 633.
• Court: Arizona Court of Appeals

Page 938

443 P.2d 938

8 Ariz.App. 123

CITY OF FLAGSTAFF, a body politic, Appellant, v. George BABBITT, Jr., Appellee.

Ildefonso M. and Mercedes VALLEJO, husband and wife; Eunice B. Veazey; Raymond and Beulah Cunningham, husband and wife, and George Babbitt, Petitioners, v. The SUPERIOR COURT OF COCONINO COUNTY; the Honorable J. Smith Gibbsons; and the City of Flagstaff, Respondents.

Nos. 1 CA-CIV 458, 1 CA-CIV 633.

Court of Appeals of Arizona.

Aug. 6, 1968.

Rehearing Denied Sept. 12, 1968.

Mangum, Wall & Stoops, by Richard K. Mangum, Flagstaff, for appellant and for respondents.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by John H. Westover and Harry J. Cavanagh, Phoenix, for appellee and for petitioners.

STEVENS, Judge.

An appeal was perfected to this Court from Coconino County Superior Court Cause No. 22197 and assigned this Court's Cause No. 1 CA-CIV 458. Pending the appeal the Superior Court undertook further action in the case and a petition for a writ of prohibition was filed which was assigned this Court's Cause No. 1 CA-CIV 633. The Superior Court was restrained from taking further action pending the decision on the appeal and the two matters were consolidated for consideration.

The basic issue involved in the appeal is whether there was a proper dedication of a portion of the land included within a subdivision plat of property now located in the City of Flagstaff so as to cause this portion to become a public park as opposed to private property of the subdivider.

In 1929, the appellee, Babbitt, and one Taylor participated in the subdividing of a tract of land which was at that time outside of the City limits of the City of Flagstaff. A subdivision plat was prepared and the subdivision was designated as Mt. Elden Addition. Most of the tract was divided into designated lots, blocks, streets and alleys, but there was a parcel approximately 9 acres in size which was left blank except for the wording 'Pinedale Park'.

Although the subdivision was outside the city limits of the City of Flagstaff, the law in effect at the time the subdivision was created required that the plat be approved by the City Council because of its proximity to the City limits. Consequently, on 14 October 1929, Babbitt and Taylor appeared before the City Council seeking approval of the plat. The plat contained a notation in the margin stating, 'The Streets, Avenues, Drives and highways as shown hereon, are hereby dedicated to the use of the public'. No reference was made in the dedication concerning Pinedale Park. The City Attorney informed the council that approval by the City was merely a legal requirement due to the fact that the land was adjacent to the city; that the plat could not be recorded without approval of the city; that it in no way became an addition to the City of Flagstaff; and that it placed no obligation upon the City. Thereafter the City Council approved the plat, it being the distinct understanding that this act placed no obligation upon the City of Flagstaff.

After the subdivision was established, lot sales took place and some homes were built. The parcel designated as Pinedale Park remained unimproved and unused for many years.

In 1957 the City of Flagstaff annexed the subdivision and it all became a part of the City. In the meantime, Babbitt replatted certain tracts and encroached upon the Pinedale Park area. He built an access road to these lots and portions of this replatted area which encroached upon the park were sold by Babbitt, some sales being prior to the annexation and other sales being subsequent to the annexation. A municipal improvement district was established in 1959 whereby sewer lines were laid in area including the park. An easement was obtained by a private engineering firm handling the project for the city from Babbitt across the land but no assessments were ever charged to Babbitt.

As late as 1962, Babbitt was being taxed and paying taxes on the property in question. In 1962 action was taken striking the parcel from the tax rolls upon the basis that it was the property of the City of Flagstaff. On 12 March 1963, the City took action establishing San Francisco Street through Pinedale Park and caused a plat to be recorded delineating San Francisco Street which is one of the two arterial streets serving north-south traffic in the City of Flagstaff. In order to lay a foundation for San Francisco Street, the City went upon the property and dumped boulders and riprap. The present location of San Francisco Street separates approximately 16 percent of the park from the remainder.

In 1964, Babbitt filed suit asking that he be declared the owner of Pinedale Park and further asked that if the court were to find that there had been a valid and legal dedication of the park, that an injunction issue to prevent the city from extending San Francisco Street through the park, alleging that such a use of the property was not commensurate with the use of the property as a park. The City of Flagstaff counterclaimed, seeking to quiet title in the park to itself.

The action was tried to the court, sitting without a jury, on 7 December 1965. The trial court heard the matter and entered a memorandum opinion in favor of Babbitt. The trial court found that there had been no intentional dedication of the park by Babbitt and Taylor, and found further that the City of Flagstaff had rejected the plat when it refused to accept or discharge any obligation relating thereto. The trial court also expressed an opinion that the use of the property by the city was not in conformity with the uses it would have been entitled to make of the property had the dedication been valid, but the court specifically refrained from deciding this matter because of the determination that there had been no dedication of the property.

Judgment was entered on 14 April 1966, declaring Babbitt to be the owner of the property, mandatorily enjoining the city to remove all streets from the property which the city had established and directing the city to restore the property to substantially the condition it was in prior to establishing the streets. The judgment further restrained, enjoined, and barred the city or anyone claiming under the city from the asserting of any claim, interest in, or title to the property which would be adverse to Babbitt's interest.

Appellant filed a timely notice of appeal and supersedeas bond. Subsequently, appellant moved to vacate the judgment, alleging that the appellee had failed to join indispensable parties. The trial judge ruled in appellant's favor and ordered the appellee to refile its complaint joining the parties, whereupon appellee sought a writ of prohibition from the Court of Appeals, Division One.

JURISDICTION OF THE TRIAL COURT

The first issue which we must determine was whether the trial court had jurisdiction to vacate the judgment after an appeal had been perfected.

It is a well settled principle of law in Arizona that, when an appeal has been perfected, the trial court loses all jurisdiction of matters connected with the case except in furtherance of the appeal. Whitfield Transportation v. Brooks, 81 Ariz. 136, 302 P.2d 526 (1956); Atkinson v. Atkinson, 2 Ariz.App. 1, 405 P.2d 919 (1965). It is also true that a court which makes a void order or judgment may at any time, either on its own motion or the motion of a party, set aside the void order or judgment. In re Estate of Milliman, 101 Ariz. 54, 415 P.2d 877 (1966). Appellant contends that the judgment of the trial court was void because of lack of joinder of indispensable parties and that the trial court had jurisdiction to set aside the judgment even though an appeal had been perfected. With this contention we do not agree.

Appellant cites Siler v. Superior Court, 83 Ariz. 49, 316 P.2d 296 (1957) as authority for the proposition that a judgment rendered in the absence of an indispensable party is void. It is true that the judgment in Siler was held to be void, but, under our view of the case, it was not held void for lack of joinder of an indispensable party. Rather the judgment was held to be void because the Superior Court had jurisdiction only to hear and determine the matter of transfer of a liquor license without adjudging property rights therein. The Superior Court exceeded this jurisdiction and, in doing so, rendered a void judgment.

In Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, Volume 2, Section 516, Page 163, we find the following:

'The fact that objection of want of an indispensable party may be raised by a court on its own motion, even on appeal, creates an impression that the defect is a jurisdictional one, for ordinarily only jurisdictional defects are so treated. Indeed cases can be found which speak of the defect as jurisdictional. The weight of authority, however, is uniformly to the contrary. The matter was clearly put by the Sixth Circuit:

"It is often said that a court of equity has no jurisdiction of a creditor's bill * * * if an indispensable party is not on the record. This is not an accurate use of the term. If the relief sought is of an equitable character, and the parties against whom it is sought are in court, it is clear that a court of equity has jurisdiction. Upon objection duly made, sometimes without objection, it should decline to proceed without necessary parties * * *; but, if it does proceed, its action is erroneous, not void.'

'It is true that the court has no jurisdiction of the absentee and that it cannot render a judgment which will bind him. But it does have jurisdiction of the existing parties and has the power to make a judgment affecting their interests. It is for discretionary reasons, not for any want of jurisdiction that the court may decline to proceed without the absentees.'

We are in complete agreement with the view that a judgment rendered in the absence of indispensable parties is not void. Therefore, we hold that the trial...