Collins v. Superior Court of State

• Decision Date: 16 November 1936
• Docket Number: Civil 3709
• Citation: 62 P.2d 131,48 Ariz. 381
• Parties: TRUMAN HARDY COLLINS, Relator, v. THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, Respondent
• Court: Arizona Supreme Court

62 P.2d 131

48 Ariz. 381

TRUMAN HARDY COLLINS, Relator, v. THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, Respondent

Civil No. 3709

Supreme Court of Arizona

November 16, 1936

Original proceeding in Certiorari. Order of Superior Court set aside.

Mr George M. Sterling, for Relator, and Mr. Edward E. Selden Associate Counsel.

Messrs Cox & Moore, for Respondent.

Messrs. Phillips, Holzworth & Phillips; Messrs. Chalmers, Fennemore & Nairn; Mr. J. Early Craig; Messrs. Moeur & Moeur; Mr. M. C. Burk; Mr. V. R. Seed; Mr. J. S. Wheeler; Mr. D. P. Skousen; Messrs. Silverthorne & Van Spanckeren; Mr. L. J. Cox, Mr. Stanley A. Jerman; Messrs. Armstrong, Kramer, Morrison & Roche; Messrs. Beer, Walsh & Wilmer; Mr. W. F. Dains; Mr. R. H. Brumbach; Mr. Walter J. Thalheimer; Mr. Floyd M. Stahl; Mr. F. C. Struckmeyer; Mr. J. E. Flynn; Messrs. Baker & Whitney; Mr. Lawrence L. Howe; Messrs. Ellinwood & Ross; Messrs. Cunningham, Carson & Gibbons; Mr. Henry H. Miller; Mr. Matt S. Walton; Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld; Mr. Geo. D. Locke, Amici Curiae.

OPINION

LOCKWOOD, C.J.

This is an original proceeding in certiorari in this court to review the action of the Superior Court of Maricopa County, finding Truman Hardy Collins, hereinafter called the relator, in contempt for failure to comply with the provisions of a judgment of said Superior Court in the case of Collins v. Collins, No. 144-D, in said Superior Court of Maricopa County, filed on the 28th day of August, 1933. There are two questions raised for our consideration in this proceeding: (a) Was there ever any valid judgment rendered in case No. 144-D? and (b) If there was, is a violation of that particular portion thereof directing relator to pay the taxes on certain premises described in said judgment, and the interest and principal of a mortgage on the same premises, punishable as a contempt?

The facts in the case as shown by the record, and material for the determination of these two questions, may be stated as follows. The relator filed a complaint for divorce against his wife, Rachel Bell Collins, on the 15th day of April, 1933, being properly represented by counsel. Defendant, also being represented by counsel, filed her answer on the same day. The matter was heard before Honorable HOWARD C. SPEAKMAN, one of the judges of the Superior Court of Maricopa County, on the 17th day of April, both parties being present and represented by counsel. Evidence was offered on behalf of plaintiff in support of the allegations of the complaint, and at the hearing a certain agreement between the parties in regard to their property rights, dated on April 15th, was offered in evidence. This agreement contained, among other things, the following provisions:

"That whereas the parties hereto being wife and husband, find that they cannot longer continue such relations, on account of marital difficulties, and have found it, after due deliberation, impossible to reconcile their troubles and therefore desire to divide their property and live separate and apart.

"Now, therefore, it is hereby agreed, that the first party hereto accepts as a settlement of her interest in the property rights of the parties hereto, and accepts in lieu and satisfaction of support money, the sum of two thousand dollars ($2000.00) to be evidenced by a promissory note, the said sum to be payable at the rate of thirty dollars ($30.00) per month, without interest, payments commencing on the 20th day of April, 1933. Also first party shall receive, and the second party shall give unto her, an undivided one-half interest in and to Lot 4 of Block 2 in Princeton Heights, a subdivision of the City of Phoenix, Maricopa County, State of Arizona, and the right to the immediate possession and control of the whole of said premises....

"And the second party agrees that he will at his own cost, discharge the present or existing mortgage on the above described premises to be taken over by the first party, and that the same will be discharged as the same becomes due. Second party agrees to pay taxes on said premises and interest, to become due on the mortgage promptly, as the same becomes due.

"The two thousand dollars ($2000.00), and other things herein mentioned taken over by first party shall be in full satisfaction as aforesaid, of any community interest in property and in lieu of support money to the first party, and should installments on said note not be made when due, any unpaid installment shall draw interest from its due date at the rate of eight per cent. per annum...."

Thereafter, and on the 28th day of August, 1933, counsel for plaintiff presented to respondent a proposed judgment for divorce which had been endorsed "approved as to form" by counsel for defendant and contained, among other things, the following provisions:

"That prior to the said hearing of this cause the plaintiff and defendant had entered into a settlement of all their property rights in the State of Arizona, and that the said settlement is in the form of a written agreement and is a just settlement and should be made a part of this decree; now therefore it is

"Ordered, adjudged and decreed, that the bonds of matrimony heretofore and now existing between Truman Hardy Collins and Rachel Bell Collins, plaintiff and defendant respectively herein, be and the same are hereby dissolved forever, It is further

"Ordered, adjudged and decreed that the defendant herein, Rachel Bell Collins, shall have, and is hereby decreed to have, in lieu and satisfaction of alimony and/or support money, the following real and personal property, to-wit;...

"3. An undivided one-half interest in and to Lot 4, Block 2, in Princeton Heights, a subdivision to the City of Phoenix, Maricopa County, Arizona, subject only to the mortgage of record on said property.... It is further

"Ordered, adjudged and decreed... that said Truman Hardy Collins, plaintiff, shall at his own cost discharge the present and existing mortgage on the above described premises when it becomes due. That the said Truman Hardy Collins shall pay all taxes on said premises and interest to become due on the mortgage on said property as the same becomes due....

"Done in open court this 28th day of August, 1933.

"HOWARD C. SPEAKMAN, Judge."

This judgment was duly filed in the office of the clerk of said Superior Court of Maricopa County on the said 28th day of August, 1933, but there is nothing in the minutes of the clerk of said Superior Court showing whether or not judgment was ever rendered in open court on said 28th day of August.

The first contention of relator is that the judgment aforesaid is void for the reason that it was not rendered in compliance with rule 7 of the Uniform Rules of the Superior Court. This particular contention might be disposed of under the principles set forth in the case of Funk v. Fillman, 44 Ariz. 263, 36 P.2d 574. In view, however, of the fact that for the first time the effect of a failure to comply with rule 7 in case of a collateral attack upon a judgment is before us, and that many eminent counsel have joined in a brief as amici curiae, requesting that this particular point be determined, and since the first contention of relator can be properly disposed of thereon, and it is of considerable importance both to the bar of the state and to litigants appearing in the courts that the rule be settled, we have decided to determine the first question presented by the appeal upon the issue raised by amici curiae.

The Uniform Rules of the Superior Courts of Arizona were adopted by this court effective May 15, 1932, under the authority of section 3652, Revised Code of 1928, which reads as follows:

"Rules of Practice. The supreme court may make and adopt rules of practice for said court for the superior courts. The clerk of the court shall print and distribute such rules and the expense shall be paid out of the appropriation for the supreme court."

These rules, in pursuance of the statute, were printed by the clerk of the Supreme Court and were distributed to each and every trial judge and practicing attorney in the state of Arizona. They contained the following preamble:

"These uniform rules for all the Superior Courts of the State of Arizona have been adopted by the Supreme Court of the state under the authority of section 3652, Revised Code of Arizona, 1928. From and after the date upon which they become effective, to-wit, May 15, 1932, they have the same force and effect as statutes, so far as they are applicable to any case, and all attorneys should familiarize themselves therewith and observe them carefully.

"Particular attention is called to the following rules and subdivisions: Rule IV, subdivision 5; Rule V, subdivisions 4 and 8, and Rule VII, as they are the ones which a failure to observe is most likely to cause the loss of an appeal in the Supreme Court."

Rule 7 referred to in the preamble reads, so far as material, as follows:

"No judgment shall be rendered by any Superior Court unless simultaneously with such rendition there shall be filed with the clerk a formal written judgment, signed by the trial judge. When the court has arrived at a decision in any case, it shall notify the parties, and the one in whose favor the decision is to be shall prepare and present to the judge a proposed form of judgment within five days thereafter, and serve a copy thereof on the opposite party. Unless the opposite party shall endorse thereon the words 'Approved as to form,' or the equivalent, he shall have five days after such service in which to object to the form of judgment by filing a written objection and serving the same upon his opponent, and no judgment or decree shall be rendered or signed by the judge...