In re Gipson's Estate, 4810
| Decision Date | 25 March 1946 |
| Docket Number | 4810 |
| Citation | 167 P.2d 383,64 Ariz. 181 |
| Parties | In re GIPSON'S ESTATE. v. GIPSON GRAHAM |
| Court | Arizona Supreme Court |
Appeal from Superior Court, Maricopa County; M. T. Phelps and Harold R. Scoville, Judges.
Proceedings in the matter of the estate of Annie May Peck Gipson deceased, wherein Walter L. Gipson was appointed administrator of the estate of Annie May Peck Gipson deceased, and wherein F. L. Zimmerman filed a purported will of the deceased, together with a petition for admission to probate thereof. Rosetta Graham was substituted as contestee and defendant in lieu of the petitioner, F. L. Zimmerman. From an order which vacated a prior order suspending the powers of the administrator and from an order refusing to appoint a special administrator, Rosetta Graham appeals. On motion to dismiss appeal.
Appeal dismissed.
F. L Zimmerman, of Phoenix, for appellant.
D. V Mulhern, of Phoenix, for appellee.
On September 5, 1944, appellee Walter L. Gipson was appointed administrator of the estate of his deceased wife, Anna May Peck Gipson. On September 15, 1944, F. L. Zimmerman filed in the superior court in the same cause a purported will of the decedent, together with his petition for admission to probate thereof. He also petitioned the court to make and enter its order cancelling and revoking the appointment of the administrator. In an order dated September 15, 1944, authorizing the taking of depositions of witnesses to the preferred will, there was included the following order temporarily suspending the powers of the administrator:
"It is further ordered that all authority and powers heretofore vested in and exercised by said Walter L. Gipson over and concerning the affairs and properties of the estate of the deceased, together with his appointment and acts as administrator of this estate be and they are hereby suspended until the further order of this court."
On the date of the hearing of the petition for probate of will, appellee filed a motion to dismiss the petition for probate, together with a statement of contest against the purported will, and his opposition to the probate thereof. The court denied appellee's motion to dismiss the petition for probate and entered its order substituting Rosetta Graham as contestee and defendant in lieu of the petitioner F. L. Zimmerman. The contest has never been tried and that phase of the matter is still pending. On December 4th the court reconsidered its action taken on September 15th in the matter of suspending the powers of the administrator and signed and entered the following written order:
"* * * It is hereby ordered that the order of this Court entered in the above entitled matter on the 15th day of September, 1944, insofar as said order suspended the authority and powers of said Walter L. Gipson, administrator, over and concerning the affairs and properties of the estate of said deceased, is hereby set aside, revoked and held for naught and the authorities and powers of said Walter L. Gipson as such administrator are hereby reinstated to and until the further order of the Court."
On December 23rd, appellant filed a motion to vacate this last order. This application was denied on January 30th, 1945. On December 27th, appellee filed a petition for the appointment of a special administrator to take temporary possession of the estate of the deceased. This last petition was denied on January 30th.
On February 12th, appellant filed a notice of appeal attempting to appeal: First, from the order of December 4th, 1944, which order vacated the order of suspension of September 15th; second, from the order of January 30th, refusing to appoint a special administrator.
Appellee has filed a motion to dismiss appeal upon the grounds that: First, the attempted appeal from the order appointing the administrator comes too late; and second, there is no appeal given by law from an order refusing to appoint a special administrator.
Section 21-1702, A.C.A.1939, subdivision 3, authorizes an appeal from an order granting letters of administration. The order appointing an administrator in this case was made on September 5th. Appellant's notice of appeal was filed on February 12th following, more than five months after the order was made. By Rule 72, Rules Civ. Proc. (sec. 21-1801) it is provided that:
The perfecting of an appeal within the time prescribed is jurisdictional, Burney v. Lee, 59 Ariz. 360, 129 P.2d 308, and the appellate court acquires no jurisdiction other than to dismiss the attempted appeal.
It is the contention of the appellant that the order of December 4th vacating the order of September 15th and thus restoring the powers of the administrator was made on December 15th rather than on December 4th, and that it was in effect the appointment of an administrator. If this double proposition is tenable, the appeal was seasonably taken.
The written order undoubtedly was prepared and presented to the trial judge for the purpose of supplementing the minute entry made by the deputy clerk in attendance upon the court on December 4th at the time the order was made. The minute entry made by the deputy clerk is somewhat confused and not in full conformity with the written order. The record would undoubtedly have been clearer had there been a nunc pro tunc order to make the minute entry entered by the deputy clerk correspond with the actual order that was signed by the judge. The appellant insists that his appeal was taken within sixty days from December 15th, the date that he contends this order was made. With this contention we cannot agree. Even if we were to assume that the order was made and entered on December 15th, no appeal would lie from such an order. It patently is not an order appointing an administrator. The administrator had long since been appointed and this order did nothing but set aside the interlocutory order of September 15th. Nowhere in section 21-1702, A.C.A.1939, authorizing appeals to the supreme court from a superior court, is the right of appeal from such an order given.
The order of January 30, 1945, denying appellant's petition for the appointment of a special administrator, is not an appealable order under our statutes. There is no provision in section 21-1702, supra, providing for an appeal either from the appointment or refusal to appoint a special administrator. In fact, section 38-602,...
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...supra, applies these appeals must be dismissed as this court would not have acquired jurisdiction to hear them. In re Gipson's Estate, 64 Ariz. 181, 167 P.2d 383. Section 21-1801, supra, was adopted pursuant to the express authority granted to the supreme court by the legislature in the fol......
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