Navajo-Apache Bank & Trust Co. v. Desmont

• Decision Date: 13 January 1916
• Docket Number: Civil 1503
• Citation: 17 Ariz. 472,154 P. 206
• Parties: NAVAJO-APACHE BANK & TRUST CO., W. H. BURBAGE and F. N. NELSON, Appellants, v. CAROLINE DESMONT and WILLIAM H. WAHL, Appellees
• Court: Arizona Supreme Court

154 P. 206

17 Ariz. 472

NAVAJO-APACHE BANK & TRUST CO., W. H. BURBAGE and F. N. NELSON, Appellants, v. CAROLINE DESMONT and WILLIAM H. WAHL, Appellees

Civil No. 1503

Supreme Court of Arizona

January 13, 1916

APPEAL from a judgment of the Superior Court of the County of Apache. George W. Crosby, Jr., Judge. Dismissed.

Mr. E S. Clark and Mr. Fred W. Nelson, for Appellants.

Mr George Estes, for Appellees.

OPINION

CUNNINGHAM, J.

This action was commenced by the appellees praying for an accounting and other relief, resulting from transactions dating from the year 1906, involving a note and a chattel mortgage on sheep to secure the note and payment on account. The appellants defended upon the grounds of misjoinder of parties defendant and nonjoinder of a necessary party and upon the grounds that the action is barred by the five-year statute of limitations; that the complaint fails to state facts sufficient to constitute a cause of action; that the matters and things set forth in the complaint have been formerly adjudicated by a competent court in three separate actions and are barred; and an answer denying all and singular the allegations of the complaint. On the thirteenth day of June, 1915, the court ordered the said pleas and special demurrer overruled. The court ordered the general demurrer overruled and the plea in bar, setting forth former adjudication, disallowed, whereupon the defendants gave notice in open court of appeal to the supreme court "from all orders and rulings of the court as to the case. . . ." On July 2, 1915, the court refused to set the case for trial on the issues of fact pending the decision of the supreme court as to whether or not the orders involved are appealable orders The documents specified by the defendants as necessary to present the questions involved on appeal were filed with the clerk of this court on September 10, 1915. On November 29, 1915, the plaintiffs, as appellees, appeared and moved to dismiss the appeal, because the orders appealed from are not final orders within the contemplation of the statute of appeals and subject to appeal. Appellants have made no reply to this motion, although the affidavit of the attorney for the movents alleges and shows that a true copy of the motion and a copy of the brief were mailed to one of the attorneys for appellants with sufficient postage thereon on the twenty-seventh day of November, 1915.

The right to appeal in any case depends wholly upon the statute permitting an appeal in such case. Paragraph 1227 of the Civil Code of Arizona of 1913 provides that:

"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) From an order granting or refusing a new trial, or granting a motion in arrest of judgment; granting or dissolving an injunction, or refusing to grant or dissolve an injunction, or appointing a receiver, or dissolving or refusing to dissolve an attachment or garnishment; from any special order made after final judgment; from any interlocutory judgment, order, or decree made or entered in actions to redeem real or personal property from a mortgage thereof, or lien thereon, determining such right to redeem and directing an accounting; from an interlocutory judgment in any action for partition which determines the rights and interests of the respective parties, and directs partition to be made, and from any interlocutory judgment which determines the rights of the parties and directs an accounting or other proceeding to determine the amount of the recovery.

"(3) From orders and judgments in probate matters.

"(4) From orders and judgments adjudging a person insane.

"(5) From any order affecting a substantial right, made in...