Fernandez v. Garza
| Decision Date | 17 April 1963 |
| Docket Number | No. 7441,7441 |
| Parties | Maria Z. FERNANDEZ, individually and as Administratrix of the Estate of Gerardo Zorrilla, Deceased, Jesus Zorrilla, Isabel Z. Fernandez, Manuel Zorrilla, Joe DeLeon and Jane Doe DeLeon, his wife, and Tom Merrill and Jane Doe Merrill, his wife, Appellants and Cross-Appellees. v. Emma GARZA, also known as Emma Zorrilla, Appellee and Cross-Appellant. |
| Court | Arizona Supreme Court |
Christy, Kleinman, Peterson & Hoyt, Phoenix, for appellants and cross-appellees.
Garland & Martin, E. Forrest Sanders, William W. Bivins, Las Cruces, N. M., for appellee and cross-appellant.
Appellants were defendants in a suit in two counts to foreclose a judgment lien and for a money judgment. Both plaintiff and defendants moved for summary judgment on both counts and the trial judge granted plaintiff's motion for summary judgment to foreclose the lien and denied all other motions. Defendants appeal from the granting of the summary judgment and the plaintiff cross appeals from the denial of his motion for summary judgment on his second count.
Plaintiff's cross-appeal is dismissed. A denial of a motion for summary judgment is not an appealable order. Kemble v. Porter, 88 Ariz. 417, 357 P.2d 155.
Plaintiff had been the partner of one Gerardo Zorrilla, deceased, who died intestate. The defendants are the heirs at law and the administratrix, who is also an heir. After the death of decedent, plaintiff filed a suit against the administratrix claiming one-half interest in the real and personal property in the assets of the estate. Before this suit could come to trial, the administratrix closed out the estate and a decree was entered distributing to the heirs all assets, including those claimed by the plaintiff. The administratrix was discharged and did not mention the pending suit in her final report.
Plaintiff then sued the heirs and administratrix to set aside the decree of distribution. The trial court set aside the decree. This court reversed the trial court and held that the decree did not affect the outcome of plaintiff's claim because:
'If in fact some of appellee's (plaintiff here) property is embodied in the decree of distribution, to that extent it is a nullity.' Fernandez v. Garza, 83 Ariz. 318, 320, 320 P.2d 948, 950.
When the original lawsuit came to trial, the trial court awarded plaintiff $17,476.12 as her share of the partnership property and imposed a lien on all assets of the estate to secure payment. We affirmed in Fernandez v. Garza, 88 Ariz. 214, 354 P.2d 260.
Defendants admit that plaintiff's interest in the real and personal property of decedent was $17,476.12. They admit that they received the real property that was in the estate. Defendants' argument concisely stated that the courts are without power to give plaintiff what she concededly has coming to her. More technically, defendants contend: (1) That the lawsuit decided in the case of plaintiff v. the heirs, reported in 88 Ariz. 214, 354 P.2d 260, is res judicata of the issues herein; (2) that the lien imposed in the case reported in 83 Ariz. 318, 320 P.2d 948, is invalid as to the heirs as they were not parties to the suit; (3) the judgment entered after the decree of distribution in the estate made the issues herein moot; (4) that the action is barred by the statute of limitations; and (5) that the real property was not part of the assets of the estate as title immediately vested in the heirs upon the death of said deceased and the lien cannot be imposed against the realty, even though the realty was included in the decree of distribution.
Only two of these contentions need be answered, and both of them can be answered by reference to the law of the case.
The first contention is that as the heirs were not parties to the original judgment lien suit, a lien cannot now be imposed on the property pursuant to that suit. The second is that the realty was never in the estate and title to it passed to them by operation of law.
The first argument is answered in Fernandez v. Garza, 83 Ariz. 318, 320, 320 P.2d 948, 950:
And again:
'If in fact some of appellee's property is embodied in the decree of distribution, to that extent it is a nullity.' 83 Ariz. at 320, 320 P.2d at 950.
Thus, under the law of the case, so far as the heirs are concerned there was no decree of distribution and no decree of dissolution and discharge to the extent of the judgment against the administratrix. The suit against the...
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