Gillespie Land & Irr. Co. v. Buckeye Irr. Co., 5273
| Decision Date | 16 January 1950 |
| Docket Number | No. 5273,5273 |
| Citation | 213 P.2d 902,69 Ariz. 367 |
| Parties | GILLESPIE LAND & IRRIGATION CO. v. BUCKEYE IRR. CO. et al. |
| Court | Arizona Supreme Court |
Clark & Clark, Phoenix, for appellant.
Jennings, Strouss, Salmon & Trask, Phoenix, for appellee Salt River Valley Water Users' Assn.
Reed, Wood & Mangum, Coolidge, for appellee San Carlos Irr. Dist.
Gust, Rosenfeld, Divelbess, Robinette & Linton, Phoenix, for appellees Gila Valley Irr. Dist.
Whitney, Ironside & Whitney, Phoenix, for appellee Maricopa County Municipal Water Conservation Dist. No. One.
Moeur & Moeur, Phoenix, for appellee Roosevelt Water Conservation Dist.
Fennemore, Craig, Allen & Bledsoe, Phoenix, for appellee Kennecott Copper Co.
Evans, Hull, Kitchel & Jenckes, Phoenix, for appellee Phelps Dodge Corporation.
Floyd M. Stahl and L. M. Laney, Phoenix, for appellees Buckeye Irr. Co. and Arlington Canal Co.
Kramer, Morrison, Roche & Perry, Phoenix, for appellee Roosevelt Irr. Dist.
DE CONCINI, Justice.
As a general rule this court does not write opinions on motions to dismiss appeals or other motions. However, this motion brings up an oft litigated question in this jurisdiction: that is, when is a judgment 'entered' so as to start the running of the statutory time for appeal.
The instant case has been in the lower courts for 20 years. It involves a number of defendants and water rights to hundreds of thousands of acres of land. The plaintiffs and defendants settled their differences; a hearing was had on the Intervenors complaint before the Honorable Gordon Farley, Superior Court Judge of Santa Cruz County, sitting as trial judge in the Superior Court of Maricopa County on the 9th day of December, 1947. The scope of said hearing was ordered by the honorable Judge Henry C. Kelly on June 17, 1947, as follows: '* * * It Is Therefore Ordered, that the issues raised by intervener's claims of rights to the use of waters of the Gila River and its tributaries, as set forth in intervener's pleadings, and defendants' answers thereto, be set for trial, for the purpose only of determining the extent, priority dates and status of intervener's claims to the appropriation, and use, of the waters of the Gila River, and that upon such determinations being made, the issues then remaining be tried and determined.'
From a purported final judgment dated May 11, 1949, Intervenor appeals. Plaintiffs and defendants, appellees herein, move to dismiss the appeal on the ground that it comes too late because the lower court's order for dismissal of Intervenor's complaint filed January 22, 1949, amounted to a final judgment.
'It Is Now Ordered that said motion to dismiss be granted; and
'It Is Further Ordered upon the presentation, settlement and approval of the form of judgment that judgment will be entered in favor of the plaintiffs and defendants and against the intervener.
'It Is Further Ordered that the Clerk of said court forthwith give notice to each and all the parties hereto of the entry of this order by mail directed to their counsel of record.
'Dated at Nogales, Arizona, this 21st day of January, 1949.
'Gordon Farley
'Presiding Judge.
'Filed January 22, 1949.'
It will be noted that the title indicates an order for entry of judgment, but actually there is no order for entry of judgment but only an order that the motion to dismiss be granted.
On February 1, 1949, intervenor filed a 'Motion to Set Aside Order of Dismissal.'
On February 3, 1949, appellees filed a motion to strike intervenor's motion on the grounds;
(1) that the statutes or rules did not provide for such a motion; (2), (3) and (4) that the motion was premature in that no judgment had yet been entered; (5) that the motion raises nothing that the court had not considered prior to its order of January 21, 1949.
On February 11, 1949, appellees paid their judgment fee.
On March 22, 1949, within sixty days of January 22nd, all motions were argued. The court made the following orders which were entered by the clerk of the court:
'It is ordered Defendants' 'Motion to Strike Motion to Set Aside Order of Dismissal' is granted and the ruling thereon disposes of Intervener's 'Motion to Set Aside Order of Dismissal.''
'Let the record show the Court heretofore entered an order granting 'Motion to Dismiss and for Entry of Judgment' which order the Court does not deem equivalent to an order to the Clerk for entry of judgment.
'It is further ordered the Court will file a Memorandum of Opinion and simultaneously therewith direct the Clerk to enter judgment in accordance with the Opinion and that thereafter counsel for the Intervener may move for a new trial if they so desire.'
In Southwestern Freight Lines v. Shafer, 57 Ariz. 111, 111 P.2d 625, 626, a similar question arose on a different set of facts. In that case the jury returned a verdict in favor of plaintiff, whereupon plaintiff's attorney moved for judgment on the verdict. In response to this motion the court made the following order: 'It is ordered that upon the presentation of a formal written judgment by the plaintiff, its approval and signing by the judge and filing thereof with the clerk of the court, judgment will be rendered in favor of the plaintiff and against the defendants in conformity with the verdict.'
In Fagerberg v. Denny, 57 Ariz. 188, 112 P.2d 581, 582, in a suit on a note, a trial judge made an order in Yuma County and transmitted it to Yavapai County where the case was tried. Said order being as follows:
'Wherefore, by reason of the law and the premises it is now ordered that upon the coming in of a written form of judgment, and subject to its service, approval, signing and filing, judgment may be entered for the plaintiff and against the defendant in the sum of $58,240.21, and costs.
'Dated this 5th day of February, 1940.
'Henry C. Kelly
'Judge sitting in said cause.'
In both the foregoing cases this court held that under the new rules of civil procedure adopted January 1, 1940, by this court, that the above orders were tantamount to a direction of the clerk to enter judgment, and that the entry of said orders constituted the entry of judgment subject to payment of the judgment fee.
The particular rule involved is section 21-1230, A.C.A. 1939, which reads as follows: ...
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