Davis v. Kleindienst

• Court: Arizona Supreme Court
• Writing for the Court: LaPrade, Judge.
• Citation: Davis v. Kleindienst, 64 Ariz. 67, 165 P.2d 995 (Ariz. 1946)
• Decision Date: 11 February 1946
• Docket Number: 4870
• Parties: DAVIS et al. v. KLEINDIENST

165 P.2d 995

64 Ariz. 67

DAVIS et al. v. KLEINDIENST

No. 4870

Supreme Court of Arizona

February 11, 1946

Appeal from Superior Court, Navajo County; W. E. Ferguson, Judge.

Proceeding between Ralph Davis and Edna Davis, husband and wife, and Joseph E. Kleindienst, also known as J. E. Kleindienst. From an adverse judgment, Ralph Davis and Edna Davis appeal. On appellee's motion to dismiss the appeal.

Motion denied in accordance with opinion.

P. H Brooks, of Winslow, for appellants.

C. D McCauley, of Winslow, and Moeur & Moeur and Charles N Walters, all of Phoenix, for appellee.

LaPrade Judge. Stanford, C. J., and Morgan, J., concurring.

OPINION

LaPrade, Judge.

We have before us for consideration appellee's motion to dismiss the appeal. The motion is grounded upon the fact that the record on appeal was not transmitted to the supreme court within the time required by the provisions of Rule 73(g), Rules Civ.Proc., being Section 21-1817, A.C.A.1939. Ordinarily this court does not prepare written decisions on motions of this character, but we feel it advisable to do so in the instant case as we did in the recent case of Sweeney v. Winslow Gas Company, 165 P.2d 316 (not yet reported [in State reports]). Our experience indicates that even though the new Rules of Civil Procedure have been in effect better than five years both members of the bench and bar appear to be confused and uncertain as to the method of prosecuting an appeal to this court. This, in part, has been occasioned by the fact that many of the old code provisions relating to pleading, practice, and procedure have been retained as rules of court in conjunction with the new rules. Ch. 8, S.L.1939.

The fact situation as appears from the record in the instant case indicates that notice of appeal was filed July 10, 1945. By the provisions of Rule 73(g), Section 21-1817, Id., the record on appeal should have been transmitted within 40 days or on or before August 19, 1945. Counsel represent that it was physically impossible for appellant to have the reporter's transcript prepared so as to be available for filing within the prescribed time. Appellant within the 40-day period did not secure an order extending the time within which the record might be transmitted on appeal. For several days prior to the expiration of the 40-day period (August 19th), the trial judge was without the county and no judge was available to whom an application could be presented for an order extending the time. Before the expiration of the 40-day period, appellant had taken no steps to secure the review of the judgment other than to file notice of appeal and a supersedeas bond. Under the provisions of Rule 73(a), Section 21-1802, Id., appellant had perfected his appeal merely by filing his notice of appeal regardless of the fact that he took no further steps to prosecute the same. See Lount v. Strouss, Ariz., 162 P.2d 430; Sweeney v. Winslow Gas Co., 165 P.2d 316 (not yet reported [in State reports]). In view of the fact that appellant had not filed a designation of the contents of the record required on appeal as provided in Rule 75(a), Section 21-1819, Id., there was no record for the clerk to transmit other than the pleadings; the verdict or the findings of fact and conclusions of law, together with the direction for entry of judgment thereon; the judgment; and the notice of appeal with date of filing. See Rule 75(g), Section 21-1825, Id. For the guidance of clerks of superior courts we hereby direct attention to the fact that they should comply with Rules 73(g) and 75(g) and transmit such record as they have within 40 days from the date of filing of notice of appeal, or within such time as may have been granted or extended by an order made before expiration of the period for transmitting as originally prescribed.

Counsel for appellant, being aware of the fact that he had not filed a designation and not having served a concise statement of the points on which he intended to rely on appeal, in compliance with Rule 75(d), Section 21-1822, Id., realized that there would be no review of the judgment in this court. For all practical purposes appellant was in the position of having abandoned his appeal. Accordingly, on August 25, 1945, appellant filed a second notice of appeal, but no new supersedeas bond. On the same date he filed his designation of the portions of the record that he required on appeal and included therein the reporter's transcript of the evidence, but he did not file with his designation two copies of the transcript. Counsel for appellee consented to this failure to file copies of the reporter's transcript by entering into a stipulation filed August 25th permitting appellant to file the transcript on or before September 28th, on which last-mentioned date it was filed. On September 30th, counsel for appellant requested the trial judge to approve the reporter's transcript, which the trial judges refused to do until the various provisions of Section 22-204, Id., had been complied with. This section allows the parties served with a transcript of the reporter's notes twenty days within which to examine and agree to the correctness of the transcript or to specify wherein it is defective. No appeal could be promptly prosecuted and transmitted to this court within the time prescribed by the new rules if this Section 22-204 were in effect. This section was retained from the 1928 Revised Code § 3866. By the specific provisions of Rule 75(h), Section 21-1826, Id., it is not necessary for the record on appeal to be approved by the superior court or judge thereof. We hold that when the reporter's transcript has been designated as a part of the record it is not necessary that it be approved by the trial judge unless the correctness of the same is contested, as provided in Rule 75(h). This interpretation of the rule is in conformity with recent Federal decisions. See William Howard Hay Foundation v. Safety Harbor Sanatorium, Inc., 5 Cir. 1944, 141 F.2d 952, and Middleton v. Hartford Accident & Indemnity Co., 5 Cir., 1941, 119 F.2d 721. We hold that Section 22-204, Id., has been superseded and eliminated from our practice by the enactment of the new rules. At the request of the trial judge, counsel complied with the provisions of section 22-204, Id. The judge did not approve the reporter's transcript until November 14th, on which date the clerk transmitted the record on appeal to this court. On November 28th, appellant filed his abstract of record, and on December 4th his opening brief. On December 14th, appellee secured from appellant a stipulation extending the time within which to file appellee's answering brief to February 1, 1946. On January 22, 1946, appellee filed in this court his motion to dismiss the appeal. This motion came subsequent to our decision in the Sweeney case, supra.

The second notice on appeal was filed on August 25th. If this...