Kemble v. Porter, 7195
| Decision Date | 01 December 1960 |
| Docket Number | No. 7195,7195 |
| Citation | 357 P.2d 155,88 Ariz. 417 |
| Parties | George C. KEMBLE, Appellant, v. Gladys E. PORTER, Appellee. |
| Court | Arizona Supreme Court |
Kramer, Roche, Burch & Streich and Johnston & Gillenwater, Phoenix, for appellant.
Wilson & Wilson and Ted F. Warner, Phoenix, for appellee.
The appeal is from an order of the superior court denying appellant's motion to vacate and set aside an execution sale. Appellee has moved to dismiss the appeal on the ground that in the facts of this case the denial of the motion to vacate was not an appealable order.
This appeal is but one more chapter in the long and now familiar litigation between Gladys E. Porter and Arnold Porter, other incidents of which have been before this Court before. The principal case was one brought by Mrs. Porter for separate maintenance. While that action was pending in the Superior Court of Maricopa County the appellant here, Kemble, took judgment against Arnold Porter in the Superior Court of Cochise County and filed a copy of the judgment in the office of the Recorder of Maricopa County. Mr. Porter was an owner of real property in Phoenix known as the Arizona Hotel. Whether his interest was separate property or property of the community of himself and Gladys E. Porter has been in dispute throughout this hydra-headed litigation. The action between the Porters went to judgment in the wife's favor. In satisfaction of that judgment the Arizona Hotel, which had previously been attached by the plaintiff wife, was sold at execution sale and purchased by the wife. Prior to the levy of execution, however, Kemble had intervened in the action of Porter v. Porter and had asked the superior court (1) to quash the wife's attachment and set aside all procedings under a judgment insofar as they affected the hotel property, (2) declare Gladys E. Porter a trustee for his own use and benefit, and (3) declare his own judgment lien prior to any and all liens of Gladys E. Porter. After the property had been sold at execution sale, Kemble, now an intervenor in the Porter v. Porter lawsuit, moved the court to set the execution sale aside. At that time his own claim in intervention, to be the prior lienor of the property, was yet to be heard and determined, although the principal separate maintenance action had long since gone to judgment. The trial court denied the motion to set aside the sale, and Kemble brought this appeal. The appellee Gladys E. Porter now moves to dismiss the appeal. The only question properly before us is whether the denial of the motion was an appealable order.
The right of appeal in this State exists only by force of Statute. Knape v. Brown, 86 Ariz. 158, 342 P.2d 195; Ackel v. Ackel, 83 Ariz. 207, 318 P.2d 676. The right is both defined and limited by A.R.S. § 12-2101. If the order in question does not come within the judgment and orders listed therein as those from which an appeal can be taken, this appeal must be dismissed. A reading of the various subsections of 12-2101 seems to eliminate as permitting this appeal all but subsection E, providing for an appeal
'From a final order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment.'
The order below seems clearly to have been in a 'special proceeding * * * in an action after judgment.' The question is: was it a final order affecting a substantial right?
We should observe at once that we are aware of at least two cases in which appeals were taken to this Court from orders denying motions to set aside execution sales. Mosher v. Ganz, 42 Ariz. 314, 25 P.2d 555; Jackson v. Sears, Roebuck & Co., 83 Ariz. 20, 315 P.2d 871, 65 A.L.R.2d 1158. We also note that in neither case was the question of the appealability of the order raised. In any event, we believe those cases not to be controlling here, nor even to bear upon the question presently before us. In each of those cases the...
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Porter v. Porter
...392, 347 P.2d 28; Porter v. Stanford, 86 Ariz. 402, 347 P.2d 35, cert. den. 371 U.S. 829, 83 S.Ct. 23, 9 L.Ed.2d 66 and Kemble v. Porter, 88 Ariz. 417, 357 P.2d 155. We will merely highlight the pertinent facts. On May 14, 1959 Gladys E. Porter, appellee, obtained an Arizona judgment for se......
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Porter v. Wilson, 22516.
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