Howard P. Foley Co. v. Harris

• Decision Date: 01 November 1966
• Docket Number: No. 1,CA-CIV,1
• Citation: 4 Ariz.App. 294,419 P.2d 735
• Parties: HOWARD P. FOLEY COMPANY, a corporation, and Jelco Doe, Inc., dba Foley-Jeico, a joint enterprise, Appellants, v. E. W. HARRIS, Appellee. 460.
• Court: Arizona Court of Appeals

Page 735

419 P.2d 735

4 Ariz.App. 294

HOWARD P. FOLEY COMPANY, a corporation, and Jelco Doe, Inc., dba Foley-Jeico, a joint enterprise, Appellants, v. E. W. HARRIS, Appellee.

No. 1 CA-CIV 460.

Court of Appeals of Arizona.

Nov. 1, 1966.

Rehearing Denied Dec. 16, 1966.

Review Denied Jan. 11, 1967.

Glen D. Webster, Lewis, Roca, Scoville, Beauchamp & Linton, by John P. Frank, Phoenix, for appellants.

Hughes & Hughes, by John C. Hughes, Phoenix, for appellee.

STEVENS, Chief Judge.

The parties to this appeal are before this Court a second time. The first opinion was rendered in the case of Harris v. Howard P. Foley Co., 2 Ariz.App. 389, 409 P.2d 309 (1966), petition for review denied by the Arizona Supreme Court. The first opinion dealt with the jurisdiction of the Court of Appeals to entertain an appeal from a minute entry order entered in relation to a motion for new trial, the order containing remitter provisions.

After the denial of the review, the Court of Appeals issued its mandate which was filed by the Clerk of the Superior Court for Maricopa County on 17 February 1966. Harris filed a formal remitter on 18 February, and on 5 April the trial court entered a minute entry order denying the motion for new trial. No formal written order was signed by the trial judge in relation to the denial of the motion for new trial. Whereas Harris had appealed and Foley Co. had cross-appealed in the earlier case, this time it was Foley Co. through one of the above named attorneys for the appellants which filed its notice of appeal on 2 June.

Harris filed the motion to dismiss, which is now before the Court, urging therein a lack of jurisdiction. Foley Co. concedes that the current appeal is premature. In view of the number of premature appeals which have been presented to this Court, it appears that the Bar is not wholly conversant with this vital and technical phase of the law.

It is well established that the Arizona Supreme Court and the Court of Appeals will each undertake to examine into its jurisdiction even in the absence of the issue being raised by the parties. Meloy v. Saint Paul Mercury Indemnity Co., 72 Ariz. 406, 236 P.2d 732 (1951); Stevens v. Mehagian's Home Furnishings Inc., 90 Ariz. 42, 365 P.2d 208 (1961); Rueda v. Galvez, 94 Ariz. 131, 382 P.2d 239 (1963); Bloch v. Bentfield, 1 Ariz.App. 412, 403 P.2d 559 (1965); Christian v. Cotten, 1 Ariz.App. 421, 403 P.2d 825 (1965), review denied; Ginn v. Superior Court, 1 Ariz.App. 455, 404 P.2d 721 (1965), review denied; Searles v. Haldiman, 3 Ariz.App. 294, 413 P.2d 860 (1966); Hunt v. Molloy, 3 Ariz.App. 327, 414 P.2d 176 (1966); Pegler v. Sullivan, 4 Ariz.App. 149, 418 P.2d 395 (decided 27 September 1966); Rogers v. Superior Court, 4 Ariz.App. 170, 418 P.2d 416 (decided 27 September 1966); Chmielewski v. Chmielewski, 4 Ariz.App. 207, 419 P.2d 111 (decided 17 Oct. 1966).

While there may be other specific code sections granting the privilege of appeal, our most frequent problems arise in relation to those orders which Section 12--2101 A.R.S. lists as being appealable. The problem before us in relation to many of the jurisdictional questions can be paraphrased as follows:

'An appealable order must be appealable in form.'

In addition to the statutory privilege of appeal, Rule 54 of the Rules of Civil Procedure, 16 A.R.S. plays a very vital part in relation to appeals. Rule 54(a) provides in part:

"Judgment' as used in these Rules includes a decree and an order from which an appeal lies.'

Prior to the 1961 amendment, Rule 58(a), 16 A.R.S., authorized judgments by minute entry for the recovery of money or for the denial of all relief. The amended 58(a), however, requires that:

'All judgments shall be in writing and signed by a judge or a court commissioner duly authorized to do so.'

There have been a number of cases in the Supreme Court and in both Divisions of the Court of Appeals which point out that the two short sentences contained in Rule 54(a) and the amended Rule 58(a) must be complied with before a court exercising appellate jurisdiction has jurisdiction to entertain the appeal. State v. Birmingham, 96 Ariz. 109, 392 P.2d 775 (1964); Bailey v. Superior Court, 97 Ariz. 293, 399 P.2d 907 (1965); State ex rel. Corbin v. Superior Court, 2 Ariz.App. 257, 407 P.2d 938; Haechler v. Andrews, 2 Ariz.App. 395, 409 P.2d 315 (1966), review denied; Associates Finance Corporation v. Scott, 3 Ariz.App. 1, 411 P.2d 174 (1966), review denied; Rogers; Hackin v. Superior Court, 4 Ariz.App. 190, 419 P.2d 94 (decided 14 October 1966); Chmielewski.

It might be well to again quote the very significant language found in Birmingham on page 112 of the Arizona Reports, 392 P.2d p. 777:

'By this rule (Rule 58a), the orders and judgments made appealable in A.R.S. § 12--2101 become effective when in writing, signed by a judge or court commissioner and filed with the clerk of the court. Rule 58(a) procedurally establishes what acts of the superior court are necessary--the manner in which the superior court must act--to create an effective and hence appealable order, decree or judgment. This is purely and solely procedural and neither diminishes nor arguments the substantive right of appeal given by the legislature. It is our conclusion, therefore, that in all those instances specified as appealable in A.R.S. § 12--2101 no order of the superior court is effective until the action taken complies with the directions prescribed in Rule 58(a).

'It should be emphasized that categorically orders of the superior court fall in two classes. First, those intermediate orders which by their nature do not settle the ultimate rights of the parties and from which no appeal is allowed. As to these, they need not be in writing or signed in order to be effective. Second, those orders, decrees or judgments, by whatever name they may be called, which to be effective and hence appealable must take the form of a judgment as set forth in Rule 58(a).'

This appeal is premature for the reason that the minute entry order of 5 April 1966 denying the motion for new trial, is not appealable in form.

The thought is sometimes expressed that compliance with Rule 58(a), as a condition precedent to appeal, unduly extends the time for appeal. In our opinion there is no magic in the preparation of a proper form of order for signature of the trial judge. There is no requirement that only one party or the other is authorized to prepare and present such an order. Either party desiring to place the record in appealable status and thus commence the running of the time for appeal, has the privilege of seeking the appropriate formal action of the trial court.

We deem it appropriate to clarify prior opinions with reference to Rule 59(e). This rule reads as follows:

'59(e) Time for determination of motion.

Motions for new trial shall be determined within twenty days after rendition of judgment, and if not so determined shall be deemed denied, unless continued by order of the court, or by stipulation.'

When a motion for new trial is 'denied' for failure to comply with the rule, it is frequently referred to as a 'denial by operation of law'. In Bergman v. Bergman, 1 Ariz.App. 209, 211, 401 P.2d 163, 165 (1965), review denied, the majority opinion stated:

'In any event, the motion for new trial not...