Mohave County v. Stephens

• Decision Date: 19 June 1915
• Docket Number: Civil 1435
• Citation: 149 P. 670,17 Ariz. 165
• Parties: MOHAVE COUNTY, Appellant, v. W. B. STEPHENS, Appellee
• Court: Arizona Supreme Court

149 P. 670

17 Ariz. 165

MOHAVE COUNTY, Appellant, v. W. B. STEPHENS, Appellee

Civil No. 1435

Supreme Court of Arizona

June 19, 1915

APPEAL from a judgment of the Superior Court of the County of Mohave. Carl G. Krook, Judge. Motion to dismiss appeal granted.

Mr. C W. Herndon, County Attorney, for Appellant.

Mr Ross H. Blakely, for Appellee.

OPINION

ROSS, C. J.

The appellee being dissatisfied with his assessment for the year 1914, as equalized, paid the whole tax under protest as provided in paragraph 4887 of the Civil Code of 1913, and took necessary steps to appeal to the superior court of Mohave county. In the superior court a jury trial was had resulting in a verdict reducing the appellee's assessment from $484.04 to $326.58; the reduction being $157.46.

The appellee moves to dismiss the appeal for the want of jurisdiction in this court. He asserts that the amount in controversy is only $157.46, and that it does not involve the validity of a tax, impost, assessment, toll, municipal fine or statute, and therefore no appeal can be had. That it is not within the exception permitting an appeal to this court where the amount in dispute does not exceed $200, we think is clear. The validity of the tax or assessment was not questioned, and could not be questioned, in that proceeding. It was the value or quantity of property that was being questioned. The total value of appellee's property after equalization was fixed at $35,855, and the total taxes thereon amounted to $484.04. The notice of protest by appellee, upon the appeal from the board of equalization to the superior court, is required to set forth the reasons why he objects to his assessment. If it is excessive, he should so state in his protest, and he should give the amount he considers as excessive. Or, if he bases his protest upon an erroneous assessment, he should show wherein it is erroneous. The protest in this case is "against the payment of my taxes for the year 1914, as said taxes have been levied and assessed by the county assessor." From this protest, if it may be considered as a protest, it seems the whole assessment was questioned. If that be true, and there is no dodging that conclusion, then there was in dispute, not $157.46, the amount of the verdict and judgment, but the whole tax of $484.04. We conclude that the first point is not well taken, the amount in controversy clearly appearing to be excess of $200.

There is, however, another objection raised by appellee, to this court's jurisdiction of the appeal, and it would seem to be well taken. He contends that there is no provision of the law allowing an appeal from a judgment of the superior court in this kind of a proceeding, and that the judgment of that court is final and conclusive of the rights of the parties. He supports his contention by the language of paragraph 4887, supra, which contains the whole law on the subject. It provides a summary method to a dissatisfied taxpayer of contesting the amount of his assessment as fixed by the board of equalization. It is a special proceeding of a remedial nature, complete in itself. It provides for the forming of issues, and what they shall be; the trial procedure and the kind of judgment to be entered. It does not provide for an appeal. It may be stated as a general proposition that where a tribunal is given jurisdiction of a special proceeding, such as this, in which the procedure is not in accordance with the course of the common law, there is no appeal from its judgment, unless expressly provided for by some statute or by some constitutional provision. The general statutes on appeal are not ordinarily construed as comprehending the orders and judgments in such special proceeding. 2 Cyc. 540; Renaud v. State Court of Mediation and Arbitration, 124 Mich. 648, 83 Am. St. Rep. 346, 51 L.R.A. 458, 83 N.W. 620; Bishop v. Perrin, 3 Ariz. 350, 29 P. 648.

In this case, the language of the general statutes on appeal is such as to foreclose a construction broad enough to include this special proceeding. The statutes and parts of statutes in point are:

Paragraph 1226, Civil Code 1913: "A judgment or order in a civil action or proceeding or in a probate proceeding may be reviewed by appeal as prescribed in this chapter, and not otherwise."

Paragraph 1227, Id.: "An appeal may be taken to the Supreme Court from a superior court in the following cases: (1) From a final judgment entered in an action or special proceeding commenced in a superior court, or brought into a superior court from any other court. (2) . . . (3) . . . (4) . . . (5) . . . (6) From a final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment. (7) . . . "

Paragraph 1228, Id.: "Every final judgment of a superior court in any action or proceeding originally brought in such court or brought into that court from another court, except probate proceedings, shall be deemed a final judgment. Every order, judgment or decree of a superior court in a probate proceeding and every order other than a final judgment as above defined shall be deemed an order, within the meaning of this chapter."

If the judgment sought to be reviewed is not one of the kind described above, the general law on appeals does not apply. Only those judgments, or orders in civil actions or proceedings, may be reviewed for which the statute has made provision. The appeal, to be sure, is from a final judgment, but it is not a "final judgment entered in an action or special proceeding commenced in a superior court, or brought into a superior court from any other court." It is an appeal from a final judgment entered in a special proceeding brought into the superior court of Mohave county from the board of equalization of that county. A board of equalization is not a court, even though in some cases it may exercise judgment and discretion. Therefore it is plain that the terms of subdivision 1, section 1227, supra, do not comprehend the judgment from which this appeal is prosecuted. And should we conclude that the "final order" mentioned in subdivision 6, supra, is the equivalent to "final judgment," still that subdivision undoubtedly has application to "a final order affecting a substantial right made in a special proceeding" "commenced in the superior court or brought into a superior court from any other court." In fact, it would seem that all the orders, judgments, and decrees mentioned in paragraph 1227 must be orders, judgments, and decrees entered in the superior court in actions or proceedings commenced therein or brought to that court from some other court. These words of original jurisdiction pervade the whole of section 1227, and limit the appellate jurisdiction of this court to a review of orders and judgments in actions originating in a court of statutory or constitutional creation.

Paragraph 1228, supra, defines "final judgment" as a judgment entered in an action originating in the superior court or one brought to that court from another court, and every other order, including orders, judgments, and decrees of a superior court in probate proceedings, is defined as an "order." Therefore a "final order," as used in subdivision 6, is to be treated on appeal not as a "final judgment," but as an "order." This appeal is not from an order or final order. It is from the judgment. We cannot treat the judgment as a "final order affecting a substantial right in a special proceeding" to aid the appeal, for the reason that the special proceeding did not originate in any court known to the laws of Arizona. In the very liberal effort by the legislature to provide for appeals from all kinds of orders, judgments and decrees, it evidently had in view actions and proceedings of court origin only, and not proceedings originating in a board of equalization.

It may be suggested that the Constitution itself confers jurisdiction of this appeal. Section 4, article 6, of that instrument,...