Hanen v. Willis

• Decision Date: 25 January 1967
• Docket Number: No. 8891,8891
• Citation: 423 P.2d 95,102 Ariz. 6
• Parties: Sam HANEN, Appellant, v. C. H. WILLIS, Jerry Skousen and Conrad J. Kleinman, Appellees. P.R.
• Court: Arizona Supreme Court

Page 95

423 P.2d 95

102 Ariz. 6

Sam HANEN, Appellant, v. C. H. WILLIS, Jerry Skousen and Conrad J. Kleinman, Appellees.

No. 8891 P.R.

Supreme Court of Arizona, In Banc.

Jan. 25, 1967.

Rehearing Denied Feb. 21, 1967.

Shimmel, Hill, Kleindienst & Bishop, Phoenix, for appellant.

C. Max Killian, Mesa, Christy, Kleinman, Hoyt & Fuller, Phoenix, for appellees.

LOCKWOOD, Justice:

Appellant Hanen, one of the plaintiffs and cross-defendants below, brought an action against Valley National Bank, Cerene Properties, Inc. and Clifford Walker, for a declaratory judgment concerning certain promissory notes executed by Hanen and others. Appellees, Willis, Skousen and Kleinman were substituted as defendants in the case in place of the Valley National Bank. They filed a counterclaim and cross-claim (designated cross-complaint) against the plaintiffs, and defendants Cerene Properties, Inc. and Clifford Walker. A default judgment was later entered in favor of counterclaimants and cross claimants (appellees herein). The Court of Appeals, Division I, in 4 Ariz.App. 224, 419 P.2d 354 (1966), dismissed an appeal by Hanen, basing its opinion on jurisdictional defects in the notice of appeal. This Court has vacated the decision of the Court of Appeals for the purpose of review.

Since the Court of Appeals decision was based entirely on a procedural-jurisdictional issue, the sole issue for determination in this opinion is whether the notice of appeal filed by appellant Hanen was sufficiently valid to vest jurisdiction in the appellate court. At the conclusion of the evidence before the trial court, the trial court on April 25, 1966, made a minute entry order for judgment in favor of the counter claimants and cross claimants (C. H. Willis, Jerry Skousen, and Conrad J. Kleinman). A formal written judgment was signed by the judge and was filed on May 9, 1966 relating to the same matters set forth in the earlier minute entry. The judgment was typewritten, and just before the judge's signature was typed 'DONE IN OPEN COURT this 25th day of April, 1966.' The typed date was inked out and changed to '9th day of May' in handwriting. On July 8, 1966 Hanen posted a cost bond and filed a notice of appeal which read as follows:

'NOTICE IS HEREBY GIVEN that the above-named Plaintiff and Counterdefendant SAM HANEN, appeals to the Court of Appeals of the State of Arizona, from the Judgment entered in the aboveentitled Court in the above-entitled action on the 25th day of April, 1966, in favor of the above-named CONRAD J. KLEINMAN, JERRY SKOUSEN, CLIFFORD WALKER and one GRANT ATKINSON, as co-partners in CORONADO LAND COMPANY, and from the whole thereof.' (Emphasis added.)

The appellees filed a motion to dismiss the appeal on September 14, 1966. In response to this motion, appellant moved to have the Court of Appeals amended his notice to read:

'NOTICE IS HEREBY GIVEN that the above-named Plaintiff and Counterdefendant, SAM HANEN, appeals to the Court of Appeals of Arizona from the Judgment entered in the above-entitled Court in the above-entitled action on the 9th day of May, 1966, in favor of the above-named CONRAD J. KLEINMAN, JERRY SKOUSEN, C. H. WILLIS and GRANT ATKINSON as co-partners in CORONADO LAND COMPANY, a copartnership and from the whole thereof.' (Emphasis supplied.)

The Court of Appeals then dismissed the appeal on the basis that the notice of appeal was defective and that after expiration of the time allowed for filing of a proper notice of appeal, the appellate court could no longer amend the notice to correct any deficiencies, and thus the court had no jurisdiction to consider the appeal.

The right of parties in Arizona to appeal from an adverse judgment is set forth in Rule 73 of the Rules of Civil Procedure, 16 A.R.S., the relevant portions of which are:

'73 (a) Limitations; parties. A judgment or order in a civil action or proceeding may be reviewed by appeal as prescribed in these Rules, and not otherwise. The appeal may be taken by any party aggrieved by such judgment or order.'

'73(b) (as amended, in part):

Notice of appeal; bond on appeal; * * * 1. When an appeal is permitted by law * * * is shall be perfected by notice filed with the superior court within sixty days from the entry of the judgment or order appealed from, * * * and by filing within such time a bond for costs on appeal.'

'73 (e) (in part):

Notice of appeal. The notice of appeal shall specify the parties taking the appeal and shall designate the judgment, order or part thereof appealed from. * * *.'

'73 (f) (in part):

Forms for notice of appeal. The notice shall state the title of the court and of the action, shall be signed by the attorney, or, if the party is not represented by an attorney, then by the party, and shall be in substantially the following form:

1. If the appeal is from the entire Judgment:

'Notice is hereby given that the above named . . . appeals to the supreme court of the state of Arizona from the judgment entered in the above entitled court in the above entitled action on the . . . day of . . ., 19 . . ., in favor of the above named . . ., and against the above named . . ., and from the whole thereof."

It must first be determined whether incorrectly designating the date of the judgment as April 25, 1966, the date of the minute entry order, satisfied the requirements of Rule 73(e), Rules of Civil Procedure, 16 A.R.S. that the notice shall designate the judgment appealed from.

The Arizona Rules of Civil Procedure are substantially the same as the Federal Rules concerning the notice of appeal. The federal courts have applied a liberal construction as to the sufficiency of a notice of appeal if the result is neither misleading nor prejudicial to the appellees involved. Hoiness v. United States, 335 U.S. 297, 69 S.Ct. 70, 93 L.Ed. 16 (1948); Martin v. Clarke, 105 F.2d 685 (7th Cir. 1939). Such construction has been directly applied to instances where there has been a mistake in the notice of appeal as to the date of the order or judgment appealed from. Klein v. Rancho Montana De Oro, Inc., 263 F.2d 764 (9th Cir. 1959); Wetherbee v. Elgin, J. & E. Ry. Co., 204 F.2d 755 (7th Cir. 1953), cert. denied 346 U.S. 867, 74 S.Ct. 104, 98 L.Ed. 378 (1953); Bates v. Batte, 187 F.2d 142 (5th Cir. 1951), cert. denied 342 U.S. 815, 72 S.Ct. 29, 96 L.Ed. 616. In each of these cases, the date inserted in the notice of appeal was that of an order or opinion other than the final judgment and the courts held that such an error did not prevent an appeal from the actual final judgment.

Many state jurisdictions have applied the same construction to the sufficiency of the notice of appeal where it is clear the appellee has been informed of the appeal and was neither prejudiced or misled. Greyhound Corporation v. Carswell, 181 So.2d 638 (Fla.1966), affirmed 185 So.2d 171 (Fla.App.1966), cert. denied 189 So.2d 634 (Fla.1966); City of Joplin v. Joplin Water Works Company, 386 S.W.2d 369 (Mo.1965); Baker v. Sojka, 74 N.M. 587, 396 P.2d 195 (1964); Collins v. City and County of San Francisco, 112 Cal.App.2d 719, 247 P.2d 362 (1952). As was said in the City of Joplin case, supra:

'Company appealed from the order overruling its motion for new trial, a nonappealable order, but we will review the judgment on Count II on the theory that Company intended and in good faith attempted to appeal from the final judgment.'

The thrust of these decisions is that when adequate notice to appeal has been given to the other party, no mere technical...