Keyser v. Shute

• Decision Date: 16 January 1892
• Docket Number: Civil 293
• Citation: 3 Ariz. 336,29 P. 386
• Parties: WILLIAM KEYSER, Plaintiff and Appellee, v. GEORGE E. SHUTE, Sheriff, et al., Defendants and Appellants [*]
• Court: Arizona Supreme Court

29 P. 386

3 Ariz. 336

WILLIAM KEYSER, Plaintiff and Appellee, v. GEORGE E. SHUTE, Sheriff, et al., Defendants and Appellants ^[*]

Civil No. 293

Supreme Court of Arizona

January 16, 1892

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Gila. William W. Porter Judge.

Affirmed.

George R. Berry, for Appellants.

Anderson Fitzgerald & Anderson, for Appellee.

Kibbey J. Gooding C. J., and Sloan, J., concurring.

OPINION

The facts are stated in the opinion.

KIBBEY J.

This was a suit by the appellee against the appellant George E. Shute, sheriff of Gila County, and the other appellants, judgment-creditors of the Old Dominion Copper Mining Company, to enjoin them from a threatened sale of certain property under an execution against that company, being property alleged formerly to have been property of the company, but of which the appellee now alleges himself to be the owner. A motion has been made in this court to dismiss the appeal because (1) of a defect in the certificate of the clerk of the district court appended to the transcript, in that it omits to state that the transcript is a transcript of all the proceedings had in the cause in the court below: (2) the transcript does not contain a copy of the appeal-bond or affidavit in lieu thereof; (3) the transcript does not contain a copy from the fee-book of the costs accrued; and (4) the transcript does not show that the assignment of errors was ever filed in said cause.

An appeal to this court from the judgment of a district court is perfected by giving notice of appeal therefrom in open court, and by filing with the clerk of the district court an appeal-bond or affidavit in lieu thereof within twenty days after the expiration of the term at which the judgment appealed from was rendered. Rev. Stats. Ariz. 1887, sec. 849.

It appears from the transcript originally filed here, omitting notice of some irregularities relative thereto, which we deem to have been waived by the stipulation of the parties, that notice of appeal was given. The original transcript omits, however, any mention of the filing of an appeal-bond, or affidavit in lieu thereof; but there appears, in the certificate of the clerk of the district court whence this appeal comes, the statement that an undertaking on appeal, in due form and time, had been filed, and was on file in his office with the papers in the cause. Appellants, after the motion to dismiss had been made, offered to file an additional transcript, (made by the clerk of the district court,) which was duly certified, from which it appeared that an appeal-bond had been filed within the time and in the form prescribed. The jurisdiction of this court having vested upon the concurrence of the two acts of giving notice of appeal and the filing of a bond as required, the appellants were allowed to file the additional transcript. The additional transcript also includes the statement of costs which had been omitted from the original transcript. Ordinarily, in the absence of an assignment of errors, this court is justified in either affirming the judgment below or dismissing the appeal. Gila R. I. Co. v. Wolfley, ante, p. 176, 24 P. 257; Putnam v. Putnam, 3 Ariz. 182, 24 P. 320; United States v. Tidball, post, p. 384, 29 P. 385, (at this term). But this is so only when the error is not fundamental. If the error be one appearing on the face of the record, and goes directly to the foundation of the right of the plaintiff to maintain his action at all, then we cannot avoid considering it, even though it be not assigned. See section 937, Rev. Stats. Ariz. 1887. United States v. Tidball, (at this term). To this extent we limit the rule laid down in Putnam v. Putnam. The motion to dismiss the appeal is overruled.

There was a judgment in the court below,--a judgment perpetually enjoining the appellants from selling the property in dispute under the executions described in the complaint. There is in the record neither a statement of facts, a bill of exceptions, nor a motion for a new trial. There are several alleged errors argued by appellants, all of them relating to rulings of the court below made during the progress of the trial of the case. It is objected here that we cannot consider these errors, because they do not properly appear of record. Appellants very strenuously urge, however, that our code does not require, in cases where the relief sought is merely injunctive, that errors occurring at the trial shall be incorporated into the record in the manner prescribed in the Code of Civil Procedure, and cite section 2144 of the Revised Statutes of 1887. Section 2144 is: "The principles, practice, and procedure governing courts of equity shall govern proceedings in injunctions, when the same are not in conflict with the provisions of this act or other law." Upon this appellants argue that the practice and procedure, even upon appeal and in the manner of perfecting it, are "governed by the rules of practice of the federal courts of the United States and the high court of chancery of England." We cannot concur in that view. Section 2144 simply permits the supplying of any matter of practice or procedure in injunction suits, provisions for which have not been made by our code, and that in supplying such omissions we shall be governed by the principles, practice, and procedure generally prevalent in courts of equity in such cases. Our code has prescribed the practice and procedure in all cases of appeal from the district courts to this court. It was not intended to prescribe a different practice upon appeal in injunction cases. Title 35, "Injunctions." of which section 2144 is a part, is a separate act within itself, distinct from the General Civil Code of Procedure. In it there is no provision at all for appeal. The right to appeal in injunction cases is given by the provisions of the Civil Code of Procedure, and, of course, we think, governed and regulated by it. If not, we are at a loss to know to what courts of equity we should look for our rules of practice in matters of appeal in injunction cases. We see no reason for preferring the practice prevailing in the federal courts to those of any of the several states where there are courts of chancery. Besides, the federal courts are not "courts of equity," any more than are the courts of our territory. There being no statement of facts and no bill of exceptions, the only record presented for our consideration is the judgment-roll.

The defendants demurred to the complaint. The demurrer was overruled. If this be error, it is one fundamental and apparent upon the record, and need not here be assigned. As a matter of fact, it is not assigned. It is alleged in the complaint that the appellant Shute is the sheriff of Gila County; that the other appellants are residents of New York and are copartners; that the Old Dominion Copper Mining Company is a corporation organized under the laws of the state of New York, and has heretofore been carrying on business in Arizona; that on and prior to the 23d of February, 1884, the Old Dominion Copper Mining Company was the owner of certain mining property, a description of which is set out in the complaint; that on that day a judgment was duly entered in the district court of the second judicial district of the territory of Arizona, in and for Gila County against the said Old Dominion Copper Mining Company, in favor of George Pope and others (among whom was the plaintiff in this case) for the sum of $ 277,378.27, and interest from January 31, 1884, and ten dollars costs; that said judgment was by confession; that on the twenty-sixth day of January, 1886, an execution upon said judgment was issued to and placed in the hands of the sheriff of Gila County, commanding him to cause to be made the moneys in said writ specified off of the lands,...