Kinnison v. Superior Court of Pima County, Civil 3653

• Citation: 46 P.2d 1087,46 Ariz. 133
• Decision Date: 08 July 1935
• Docket Number: Civil 3653
• Parties: J. E. KINNISON, Petitioner, v. THE SUPERIOR COURT OF PIMA COUNTY, Arizona, and WILLIAM G. HALL, Judge, Respondents
• Court: Arizona Supreme Court

46 P.2d 1087

46 Ariz. 133

J. E. KINNISON, Petitioner, v. THE SUPERIOR COURT OF PIMA COUNTY, Arizona, and WILLIAM G. HALL, Judge, Respondents

Civil No. 3653

Supreme Court of Arizona

July 8, 1935

Original proceeding for Writ of Certiorari by J. E. Kinnison to determine jurisdiction of Superior Court of Pima County in a matter appealed from justice court. Proceeding declared null and void.

Messrs Kimble & McLean, for Petitioner.

Mr Harry O. Juliani, for Respondents.

OPINION

ROSS, J.

Upon the application of J. E. Kinnison, alleging that the superior court of Pima county was exceeding its jurisdiction in entertaining an appeal from the justice court of Tucson precinct in a case wherein he was plaintiff and one Tom June defendant, when in fact the appeal had not been perfected by giving notice and filing an appeal bond as required by law we granted the writ of certiorari and fixed the return day of June 17, 1935. The return has been made by the Honorable WILLIAM G. HALL, Presiding Judge of said court. The facts set out in the petition for the writ and those in the return coincide. In other words, there is no disputed fact.

It appears from the petition and the return that Kinnison, on March 8, 1935, commenced an action in the justice court of Tucson precinct against Tom June and others seeking a money judgment in the sum of $199.99; that thereafter, on April 17th, the court after a hearing ordered that judgment be entered for plaintiff; that on April 22d a formal written judgment was signed and filed in favor of Kinnison for $199.99, and costs taxed at $5.60.

On April 17th, at the time judgment was ordered for plaintiff, defendant June gave notice of appeal in open court, and again on April 20th he gave written notice of appeal from said judgment or order. No appeal bond was ever tendered or filed, but on April 29, 1935, the defendant tendered to the justice court, in lieu of surety bond, a cashier's check for $225, which was accepted by the clerk of said justice court, who thereupon certified the record to the superior court of Pima county, accompanying the same with the check of the justice of the peace for $225, payable to the clerk of the superior court.

Under these facts, did the superior court obtain jurisdiction over the case? Section 4204, Revised Code of 1928, provides that:

"The party appealing shall give notice thereof in open court at the time the judgment is rendered, or by serving a written notice thereof upon the adverse party, within five days thereafter, and shall within ten days from the date of the judgment, file with the justice a bond to be approved by the justice, in double the amount of the judgment, payable to the appellee, conditioned that the appellant shall prosecute his appeal to effect, and shall satisfy the judgment which may be rendered against him on such appeal."

There is no question but that the notice or notices of appeal conformed with the statute. The trouble arises over the appeal bond. The petitioner insists: (1) That the court could not accept the cashier's check in lieu of a bond because it was not "in the sum required" (section 342, Id.); that is, "in double the amount of the judgment" (section 4204, supra). Section 342 authorizes the acceptance of "lawful money of the United States in the sum required in the bond" in any civil matter or proceeding wherein a bond is required. (2) That if by reason of the check being insufficient in amount it be regarded only as defective and amendable under section 4208, Id., it was not filed as section 4204, supra, requires, "within ten days from the date of the judgment," and that therefore there is no bond to amend.

Petitioner makes no point of the deposit of the cashier's check instead of lawful money of the United States as the statute requires. The parties may acquiesce in such departure from the terms of the statute, it being a right that can be waived. The inadequacy in amount of the cash deposit may be regarded as a defect that might be cured by filing a sufficient bond as provided in section 4208, supra or raising the deposit to...