Reed v. Chambers

• Decision Date: 19 October 1921
• Docket Number: Civil 1894
• Citation: 201 P. 98,23 Ariz. 35
• Parties: B. S. REED, Appellant, v. E. R. CHAMBERS and R. G. CHAMBERS, Appellees
• Court: Arizona Supreme Court

201 P. 98

23 Ariz. 35

B. S. REED, Appellant, v. E. R. CHAMBERS and R. G. CHAMBERS, Appellees

Civil No. 1894

Supreme Court of Arizona

October 19, 1921

APPEAL from a judgment of the Superior Court of the county of Navajo. J. E. Crosby, Judge. Affirmed.

Mr Thorwald Larson, for Appellant.

Mr. C H. Jordan and Mr. W. E. Ferguson, for Appellees.

OPINION

McALISTER, J.

This is an appeal from an order of the superior court releasing from further liability the sureties on a bond which is claimed by appellant to be both an appeal and supersedeas bond, but by appellees to be only the former.

B. S Reed, plaintiff-appellant, recovered, on a promissory note judgment for $1,500, together with attorney's fees interest, and costs, against E. R. Chambers and R. G. Chambers, defendants and appellees. A demurrer to the complaint had been overruled March 6, 1920, and ten days given for filing an answer, but, none having been filed, the default of the defendants was entered and a trial had May 7, 1920, resulting in a judgment for the plaintiff. On May 17th a motion for a new trial was filed, which was denied on May 27th by operation of law. No notice of appeal therefrom was given, nor from the judgment itself, but on June 5th a bond, entitled "Bond on Appeal," having been approved, was filed by defendants, and in it appears the statement that upon the denial of their motion for a new trial the defendants "gave notice of appeal in open court from said judgment and said order denying defendants' motion for a new trial to the Supreme Court of the state of Arizona." On June 26th thereafter an order was entered releasing the sureties on this bond from further liability and a new bond, identical in form with it except as to dates and sureties, was approved and filed. Upon hearings, orders were entered releasing W. W. Perkins and Julio Sancet, sureties on the new bond, from further liability thereon, the first order being on October 1st and the second on October 30, 1920. The purpose of this appeal is to have this court set aside and hold for naught these two orders. No other error is assigned.

The sheriff of the county certifies under date of June 5th that, in pursuance of a writ of execution issued out of the superior court of Navajo county on May 7, 1920, he levied on 950 head of Navajo ewes, the property of one of the defendants, took them into his possession, and advertised them for sale, but before the sale took place he released them by direction of the plaintiff; the defendants having given a supersedeas bond in double the amount of the judgment. This certificate was made on the day the first bond was filed, but error is not based on the order of June 26th releasing the sureties on this bond from further liability.

Notwithstanding the statement in both bonds that defendants gave notice of appeal in open court from the judgment and the order denying their motion for a new trial, it is established from the record that no such notice was given. In this jurisdiction an appeal is "taken by the party taking the same giving notice of appeal in open court, which shall be entered in the minutes of the court, or by a written notice which shall be served upon the adverse party or his attorney, and filed with the clerk of the superior court." Paragraph 1234, Rev Stats. Ariz. 1913. In the case of Thomas...