Navajo Realty Co. v. County Nat. Bank & Trust Co. of Santa Barbara

• Decision Date: 29 November 1926
• Docket Number: Civil 2554
• Citation: 250 P. 885,31 Ariz. 128
• Parties: NAVAJO REALTY COMPANY, a Corporation, Appellant, v. COUNTY NATIONAL BANK & TRUST COMPANY OF SANTA BARBARA, a Corporation, Trustee of the Estate in California of HENRY HUNING, Deceased, Appellee
• Court: Arizona Supreme Court

250 P. 885

31 Ariz. 128

NAVAJO REALTY COMPANY, a Corporation, Appellant, v. COUNTY NATIONAL BANK & TRUST COMPANY OF SANTA BARBARA, a Corporation, Trustee of the Estate in California of HENRY HUNING, Deceased, Appellee

Civil No. 2554

Supreme Court of Arizona

November 29, 1926

APPEAL from a judgment of the Superior Court of the County of Navajo. E. Elmo Bollinger, Judge. Opinion denying motion to vacate order imposing penalty.

Messrs Kibbey, Bennett, Gust, Smith & Lyman, for Appellant.

Messrs Armstrong, Lewis & Kramer, for Appellee.

OPINION

PER CURIAM.

On the 15th of November, 1926, this court affirmed the judgment of the superior court of Navajo county in the above-entitled action, rendering judgment against the sureties on the supersedeas bond filed herein, and assessing a penalty of five hundred dollars for a frivolous appeal under the provisions of paragraph 1272, Revised Statutes of Arizona of 1913, Civil Code. On November 18th, 1926, appellant moved to modify the judgment rendered by striking therefrom the penalty. Ordinarily this motion would be disposed of without a formal opinion, but, in view of the fact that a question has arisen during its consideration of considerable importance to the appellate practice in this state, we have deemed it best that a written opinion be filed. It is necessary, in order that the grounds of our decision may appear that we state briefly the history of the proceeding in the superior and the Supreme Courts.

The minutes of the trial court, as they appear in the record, do not show any rendition of judgment whatever. Taking the record as a whole, however, judgment was apparently rendered on the eighth day of February, although the formal written instrument was not filed until the 25th of March. On April 14th a notice of appeal to this court was duly docketed. July 24th the record on appeal was received by the clerk of this court from the trial court, and notice to that effect was duly given appellant's attorneys. On the thirtieth day thereafter, appellant not having paid its filing fee within the time provided by statute, appellee paid his fee and had the case docketed. On the next day appellant paid its filing fee, and credit was given on the docket for the same. No abstract of record was filed, as provided by statute and the rules of this court, within thirty days thereafter or indeed at all. After the time for filing the abstract had passed, appellee filed a motion that the judgment of the trial court be affirmed; that judgment be rendered against the sureties on the supersedeas bond in pursuance of paragraph 1271 Revised Statutes of Arizona of 1913, Civil Code, and that this court include in its judgment ten per cent of the judgment appealed from as damages for a frivolous appeal under the provisions of paragraph 1272, supra. Appellant was duly served with a copy of this motion, but filed no objection thereto. On the 3d of November, however, it did file a certified copy of a certain instrument duly verified, and which had been recorded with the county recorder of Navajo county, reading as follows:

"Release of Writs of Attachment.

"Know all men by these presents that writs of attachment, dated June 12, 1924, and August 18, 1924, respectively, as served by sheriff of Navajo county, state of Arizona, each covering lots 11 and 12 in block 7 of town of Winslow, Navajo county, Arizona, and served on June 12, 1924, and August 18, 1924, respectively, and recorded in volume 3 of Notices Affecting Real Estate, page 359 and 388, respectively, in the office of county recorder of Navajo county, Arizona, are fully satisfied, and are hereby released and discharged in action in superior court of the state of Arizona, in and for the county of Navajo, in which County National Bank & Trust Company is plaintiff, and Navajo Realty Company is defendant.

"In witness whereof, as one of the attorneys of record for the plaintiff, I have hereunto set my hand, this 27th day of September, 1926.

"C. H. JORDAN,

"As Attorney for Plaintiff."

At the same time the clerk of this court was informed by counsel for appellant in substance that the matter had been entirely settled and it was immaterial to appellant what action the court took in the case.

On the next regular motion day the court was informed by the clerk of the statement made by counsel and, assuming that the case had been settled, an order was entered dismissing the appeal. Counsel for appellee, being informed the same day of this order, immediately protested, stating that the action had not been settled to their knowledge, and asking to be heard, whereupon the order dismissing was vacated, and upon the next motion day this court entered an order, based upon the record of the case, in accord with appellee's motion, and assessing a penalty of $500 under paragraph 1272, supra. On the 18th of November appellant moved to vacate the order assessing the damages as aforesaid. To this appellee answered on the 19th, and on the 20th a further showing in support of its motion was made by appellant.

Paragraph 1272, supra, reads as follows:

"1272. When the Supreme Court shall be of opinion that an appeal has been taken for delay, and that there was not sufficient cause for taking an appeal, it may, in its discretion, include in its judgment such additional sum, not exceeding ten per cent of the judgment appealed from, if such judgment be for the recovery of money, and not exceeding five hundred dollars in other cases, as the court may deem proper, as damages for a frivolous appeal."

If there ever was a case where it would appear from the face of the record that an appeal was taken merely for the purpose of delay and without sufficient cause, we think this is such a one. The appeal itself was not taken until nearly sixty days after the judgment was rendered. Although this, of course, was within the statutory time, yet it hardly shows great diligence. The record from the trial court did not arrive in this court for nearly ninety days instead of within the thirty days provided by statute. Appellant, although notified by the clerk of this court that the record was here, did not pay its filing fee until after the time for so doing had elapsed, and until after...