Miller v. The Arizona Bank

• Decision Date: 01 April 1935
• Docket Number: Civil 3451
• Citation: 45 Ariz. 297,43 P.2d 518
• Parties: GEORGE W. MILLER, ISABELLA C. MILLER, ALLEN E. WARE, JOHN ALLEN WARE, EDWIN E. WARE, LOUIS L. WALLACE and K. W. DAVIDSON, Appellants, v. THE ARIZONA BANK, a Corporation, and Y. C. WHITE, as Superintendent of Banks of the State of Arizona, et al., Appellees
• Court: Arizona Supreme Court

43 P.2d 518

45 Ariz. 297

GEORGE W. MILLER, ISABELLA C. MILLER, ALLEN E. WARE, JOHN ALLEN WARE, EDWIN E. WARE, LOUIS L. WALLACE and K. W. DAVIDSON, Appellants, v. THE ARIZONA BANK, a Corporation, and Y. C. WHITE, as Superintendent of Banks of the State of Arizona, et al., Appellees

Civil No. 3451

Supreme Court of Arizona

April 1, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.

Mr David P. Hatch and Mr. Louis L. Wallace, for Appellants.

Messrs Moore & Shimmel, Mr. Arthur T. La Prade, Attorney General and Mr. Riney B. Salmon, Assistant Attorney General, for Appellees the Arizona Bank and Y. C. White, Superintendent of Banks.

Messrs Ellinwood & Ross, Mr. John Mason Ross, Mr. William H. Mackay and Mr. Norman S. Hull, for Appellees Northern Arizona Securities Company, Grand Canyon Sheep Company, Three V. Livestock Company, H. J. McClung, J. P. Wilson, George Kingdon, Ellen A. Brophy, J. S. Douglas, and First Securities Company, Ltd.

Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellee Security First National Bank of Los Angeles.

Messrs. Chalmers, Fennemore & Nairn and Mr. O. C. Compton, for Appellee C. B. Wilson.

Messrs. Moeur & Moeur, for Appellee C. J. Walters.

Messrs. Clark & Clark, for Appellee Lulu H. Robinson.

OPINION

LOCKWOOD, C.J.

George W. Miller, Isabella C. Miller, Allen E. Ware, John Allen Ware, Edwin E. Ware, Louis L. Wallace and K. W. Davidson, hereinafter called plaintiffs, brought suit against numerous defendants, whom we shall hereinafter refer to either generically as defendants or individually by name, in the superior court of Mohave county. Defendants Leo M. Meeker and First Securities Company, Ltd., were never served personally with summons and did not appear or answer in the proceeding, except that the latter filed a special appearance, and a motion to quash the summons which was never passed on. Defendant Lloyd Thomas, as Superintendent of Banks of the state of Arizona, filed a motion for a change of venue from Mohave to Maricopa county, on the ground that he was at the time of filing the complaint a public officer whose office was in Maricopa county. This motion was resisted by plaintiffs, but was asquiesced in by the codefendants of Thomas, and after consideration it was granted and the case removed to Maricopa county for further proceedings. Thereafter various motions, pleas and special and general demurrers to the complaint were filed by each of the defendants served, and were submitted to the court for its consideration. On July 17, 1933, the following order was entered in the minutes:

"It is hereby ordered sustaining the Demurrers and dismissing the complaint."

On the 3d day of August a proposed written judgment was served upon plaintiffs and on August 7th they filed their objections to the form thereof, and a motion to vacate the decision and order of dismissal and reinstate the case, with leave to amend the complaint, and with said motion for leave to amend, filed a document entitled "amended and supplemental complaint." Thereafter and on September 15th the court denied the motion of plaintiffs to vacate the decision and order of dismissal, and for leave to amend the complaint, sustained part of the objections to the form of the judgment, and on the same day filed a written judgment, which after various recitals read as follows:

"It is hereby ordered, adjudged and decreed

"(1) That the defendants' demurrers to the plaintiffs' complaint herein on the grounds that said complaint does not state a cause of action against said defendants, or any of them, be and the same are hereby sustained;

"(2) That plaintiffs' complaint herein be dismissed;

"(3) That the said action be, and the same is, hereby dismissed.

"(4) That the defendants appearing herein, as aforesaid, do have and recover of and from the plaintiffs and each of them, their respective costs of suit necessarily incurred herein.

"Done in open court this 15 day of September, 1933.

"G. A. RODGERS,

"Judge of the Superior Court of the State of Arizona in and for the County of Maricopa."

Thereupon the following notice of appeal was given:

"Notice is hereby given that the above named plaintiffs appeal to the Supreme Court of the state of Arizona from the decision and order rendered, made, and entered in the above-entitled cause on the 17th day of July, 1933, dismissing the complaint, and from the whole thereof; and from that certain order rendered, made, and entered on September 15, 1933, denying plaintiffs' motion to vacate decision and order of dismissal and reinstate said cause with leave to amend complaint, and from the whole thereof; and from that certain order rendered, made, and entered on September 15, 1933, granting in part and refusing in part the objections of plaintiffs to the proposed form of judgment submitted by defendants, and from the whole thereof; and from that certain purported judgment rendered, made, and entered on September 15, 1933, in favor of said defendants and against said plaintiffs, and from the whole thereof."

And the appeal was duly perfected in proper form.

It will be noted that the appeal by its terms was taken from four things: (a) the decision and order of July 17th; (b) the order of September 15th denying the motion to vacate the decision and order of dismissal, and to reinstate the cause with leave to amend; (c) the order of September 15th overruling part of plaintiffs' objection to the form of judgment; and (d) the judgment rendered and entered September 15, 1933. So far as the decision and order of July 17th is concerned, we think no appeal can be taken therefrom. The decision purports (1) to sustain the demurrers; and (2) to dismiss the complaint. This last would be a final judgment, but no written judgment of dismissal was filed at the time of the attempted dismissal, as provided by rule 7, Uniform Rules of the Superior Court. The attempted rendition of the judgment of dismissal was therefore void. Gillespie Land & Irrigation Co. v. Hamilton, 41 Ariz. 432, 18 P.2d 1111; Chiricahua Ranches Co. v. State, 44 Ariz. 559, 39 P.2d 640. While the order sustaining the demurrers was valid, it is not an appealable order. City of Phoenix v. Jones et al., 21 Ariz. 432, 189 P. 242. We think, therefore, we are without jurisdiction to consider the first ground of appeal.

We discuss next the appeal from the order denying the motion to vacate the decision and order of dismissal, and to reinstate the cause with leave to amend, and the appeal from the order overruling part of plaintiffs' objections to the form of judgment. None of these orders are among those mentioned in section 3659, Revised Code 1928, from which alone an appeal can be taken. We therefore are without jurisdiction to consider separate appeals from any of them. Section 3658, Rev. Code 1928.

This brings us to the fourth matter appealed from, which is the judgment rendered on September 15, 1933. This is, of course, an appealable judgment, and the appeal brings before us all the orders from which we have held separate appeals could not be taken, except so far as they have been disposed of by what we have already said. Section 3660, Rev. Code 1928.

We proceed, therefore, to consider the questions raised by the appeal from the judgment, in such order and manner as we deem advisable for the sake of clarity and conciseness. The first is whether or not the order of the superior court of Mohave county changing the venue of the case to Maricopa county was erroneous. The motion was based on subdivision 16 of section 3715, Revided Code 1928, which reads as follows:

"16. Actions against public officers must be brought in the county in which the officer, or one of several officers, holds his office."

It is the contention of plaintiff that this subdivision does not apply to state officers, but to county officers only, and that since the defendant Thomas was sued as an officer and not individually, his personal residence was immaterial. The statute is not by its terms limited to county officers, but applies to public officers in general. Without doubt the superintendent of banks of the state of Arizona is a public officer of the executive branch of the state government, and holds his office at the state capitol in the city of Phoenix in Maricopa county, although he may from time to time perform various duties of the office in other counties. We are of the opinion that the change of venue was properly allowed, especially as none of his codefendants objected thereto.

Since the order of dismissal of July 17th was void, the case had never been dismissed and no order to reinstate was either necessary or proper, as on September 15th the legal status was that the general and special demurrers had been sustained, but no valid judgment rendered. The order denying the motion to vacate the decision and order of dismissal therefore was correct.

The question as to the right to amend a complaint after a demurrer is sustained has been before the courts many times. In states where the matter is not regulated by statute, it is very generally held that the filing of an amended complaint is within the discretion of the trial court, and its decision will not be reviewed except for an abuse of such discretion. This is the effect of most of the cases cited by defendants on this point. In Arizona, however, section 3740, Revised Code 1928, reads as follows:

"3740. Amendments. All pleadings may upon leave of the court be amended at any time, upon such terms as the court may prescribe, or the same may be amended without such leave, not less than five days before trial, by serving the adverse party with a copy of such amended pleading."

Plaintiffs contend that under ...