McBride v. McDonald

Decision Date31 May 1923
Docket NumberCivil 2067
Citation215 P. 166,25 Ariz. 207
PartiesR. G. McBRIDE and GRACE GERTRUDE McBRIDE, Appellants, v. J. F. McDONALD, S. K. WILLIAMS and INEZ P. WILLIAMS, Appellees
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Cochise. A. M. Sames, Judge. Affirmed.

Mr. W G. Gilmore, for Appellants.

Mr Alexander Murry, for Appellees.

OPINION

McALISTER, C. J.

R.G McBride and Grace Gertrude McBride, his wife, plaintiffs below, appeal from an order modifying a temporary injunction prohibiting the sale of 321.17 acres of land belonging to the latter by releasing from its operation and permitting to be sold by appellees, J. F. McDonald, sheriff, S. K. Williams, and Inez Williams, 160 acres thereof for the purpose of satisfying a judgment for $1,217.40 against said Grace Gertrude McBride in favor of appellees, S. K. Williams and Inez Williams. The remaining 161.17 acres having been filed on as a homestead before the day of sale, the restraining order was made permanent as to it.

The judgment was rendered in the district court of the second judicial district of the territory of Arizona, in and for the county of Cochise, on June 25, 1909, and within ninety days of the expiration of five years from that time, to wit, on May 22, 1914, appellees filed in the office of the clerk of the superior court of Cochise county, Arizona, their affidavit for its renewal; and on May 10, 1919, they filed in the same court their affidavit for its second renewal.

The basis of the assignments is the alleged insufficiency of these affidavits of renewal, though it is first urged that the statute does not provide for the renewal by affidavit of a judgment rendered in the district court of the territory of Arizona. This claim is based upon the provisions of paragraphs 580 and 581 of the Civil Code of 1913, the first of which provides for the renewal by action of "any judgment rendered . . . of this state or of the territory of Arizona," and the second for the renewal by affidavit of --

"any judgment directing in whole or in part the payment of money which has been heretofore, or may hereafter, be duly entered and docketed in the judgment docket in the office of the clerk of any superior court of this state, whether said judgment was originally rendered by the court in whose clerk's office the same is entered, or whether entered upon a transcript of judgment from any other county in the state, or upon a certified transcript of the docket entry of a judgment or decree of any district court of the United States, within the state of Arizona, or entered upon a certified transcript of the judgment of a justice of the peace."

Since by the wording of these sections any judgment rendered in any court of the state or territory of Arizona may be renewed by action and only those directing the payment of money, which have been entered and docketed in the office of the clerk of a superior court of this state may be renewed by affidavit appellant contends that no judgment entered and docketed in the office of a clerk of the district court of the territory may be so renewed. It is true section 581 contains no specific mention of judgments entered and docketed in the territorial courts, but it is evident that they were included in the reference to those which had been theretofore entered and docketed in the office of the clerk of any superior court of the state. When this statute was enacted in 1913, Arizona had been a state but little more than a year, and to hold that that portion of it permitting the renewal by affidavit of judgments which had been theretofore entered and docketed applies only to judgments entered and docketed after statehood means that the five-year period in which said judgments might be renewed was shortened to something over a year, so far as judgments entered and docketed in the state courts were concerned, and consequently that it had no existence at all so far as its terms included those judgments entered and docketed in the last three years and over of territorial government but within the five years next preceding the enactment of this statute. The evident purpose of this provision was to place judgments rendered by the territorial and state courts upon the same footing, since to have given the holders of the latter the right to renew by affidavit and denied it to the holders of the former would have been unjust and discriminative; and, in view of the fact that the statute specially applies to judgments theretofore entered and docketed there is no reason why it should not be held to include all those entered and docketed within the five years, next preceding its enactment, regardless of the fact that some of them were in the state and others in the...

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4 cases
  • In re Disbarment of Spriggs, Civil 2779
    • United States
    • Arizona Supreme Court
    • January 27, 1930
    ... ... antedating would therefore be to show a judgment as renewed ... which, as a matter of fact, was outlawed and beyond renewal ... McBride v. McDonnald, 25 Ariz. 207, 215 P ... Respondent ... demurred to the petition, setting up two grounds of demurrer ... The first was ... ...
  • De Anza Land and Leisure Corp. v. Federal Deposit Ins. Corp.
    • United States
    • Arizona Court of Appeals
    • January 4, 1983
    ...Arizona Supreme Court has touched upon the question of whether a judgment may be renewed more than once by affidavit. McBride v. McDonald, 25 Ariz. 207, 215 P. 166 (1923). In that case the original judgment was rendered in the district court of the second judicial district of the Territory ......
  • Paladino v. MacGurn
    • United States
    • Arizona Court of Appeals
    • August 1, 2023
    ... ... judgment." Weltsch, 25 Ariz.App. at 53 (citing ... Fay , 64 Ariz. 10; McBride v. McDonald , 25 ... Ariz. 207 (1923)). In Fay , the renewal affidavit ... overstated the balance owed, but the renewal was effective ... ...
  • Weltsch v. O'Brien
    • United States
    • Arizona Court of Appeals
    • October 7, 1975
    ...renewal affidavit, the technical omission or errors in the affidavit will not defeat the renewal of the judgment. See McBride v. McDonald, 25 Ariz. 207, 215 P. 166 (1923). In the affidavit itself, the names of the parties appear, the civil cause number appears, the date of judgment appears ......

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