Schaefer v. Duhame

• Decision Date: 26 May 1947
• Docket Number: 4935
• Parties: SCHAEFER et ux. v. DUHAME
• Court: Arizona Supreme Court

181 P.2d 628

65 Ariz. 385

SCHAEFER et ux. v. DUHAME

No. 4935

Supreme Court of Arizona

May 26, 1947

Appeal from Superior Court, Maricopa County; W. C. Truman, Judge.

Motion granted and judgment affirmed.

Armstrong & Spector, of Phoenix, for appellants.

Cunningham & Carson, of Phoenix, for appellee.

Stanford Chief Justice. LaPrade and Udall, JJ., concurring.

OPINION

Stanford Chief Justice.

Action was brought in the trial court by appellee hereinafter called plaintiff, for $ 10,729.74 claimed due him by defendants (appellants) and to foreclose a mechanic's lien against defendants' real property. Notice and claim of lien had been previously filed. Plaintiff alleged in the complaint that on or about February 1, 1945, the plaintiff and defendants entered into an oral contract for the construction of a dwelling house and garage upon a certain portion of Ashby Acres near Phoenix; that said contract provided for the payment by defendants to plaintiff of the cost of labor and materials plus five per cent additional for overhead and small tool rental, and plus ten per cent additional for profit.

Defendants' answer admitted entering into the oral contract, but alleged that it was for cost plus ten per cent for profit, but that the cost of the buildings was not to exceed $ 7,000, and then alleged that the actual cost of the labor and material going into said structure, plus ten per cent, did not exceed $ 7,000.

The jury in this case rendered its verdict in favor of the plaintiff in the sum of $ 9,325. Defendants thereupon appealed to this court from the judgment entered on said verdict.

After the defendants filed their opening brief, the plaintiff filed with his answering brief a motion to dismiss in two parts which we should first consider.

First he contends: "* * * that the reporter's transcript herein was never filed in the office of the Clerk of the Superior Court as required by Section 22-202 Arizona Code Annotated 1939, and that such transcript was never presented to the trial judge or approved by him or presented to him for approval or correction as required by Paragraph 22-204 Arizona Code Annotated 1939 and in fact was never certified by him as required by Paragraph 22-209 Arizona Code Annotated 1939 and was never in the possession of the Clerk of the Superior Court and was not forwarded to this Court by the said Clerk as required by Paragraph 21-1825 Arizona Code Annotated 1939."

Section 21-1831, A.C.A.1939, is as follows: "The Supreme Court, or any judge thereof may, for good cause shown, enlarge the time within which any of the things provided in this chapter (article) may be done, but the time for taking an appeal shall not be extended."

There was filed in this court on September 12, 1946, by the defendants an application for enlargement of time within which to file reporter's transcript. The copy filed herein has an acknowledgment for the receipt of same by the attorneys for plaintiff dated September 12, 1946. On September 16, 1946, this court granted the application. At the time the application was granted although the notice for the hearing on same was designated in the notice served on the attorneys, aforesaid, as Monday, September 16, 1946, at the hour of 10 a. m., no one representing the plaintiff appeared causing this court at that time to extend the time by the following minute entry: "On affidavit of counsel for good cause shown ordered that the time for filing the reporter's transcript in the above styled case be extended to and including October 1, 1946." Accompanying the application for notice to extend the time, aforesaid, were the affidavits of A. B. Spector, one of the attorneys for the defendants, and J. B. Ryan, the court reporter for Division No. 5 of the Superior Court in which said case was tried.

By plaintiff's motion to dismiss he relies on Secs. 22-202 and 22-204, supra. Sec. 22-202 has to do with the time for filing reporter's transcript. Sec. 22-204 has to do with proceedings after filing statement or notice of transcript. In respect to Sec. 22-202 this court stated in Sweeney v. Winslow Gas Co., 64 Ariz. 51, 165 P.2d 316, 318, "However, it is apparent and we hold that under the provisions of the act authorizing the adoption of the Rules of Civil Procedure for the Superior Courts, being Chapter 8, Session Laws 1939, Section 19-204, A.C.A.1939, Section 22-202 is no longer the governing section. It has definitely been superseded by Rule 75(b) (Section 21-1820, Id.). * * *"

With respect to Sec. 22-204 this court said in its case of Davis v. Kleindienst, 64 Ariz. 67, 165 P.2d 995, 996: "* * * This section allows the parties served with a transcript of the reporter's notes twenty days within which to examine and agree to the correctness of the transcript or to specify wherein it is defective. No appeal could be promptly prosecuted and transmitted to this court within the time prescribed by the new rules if this Section 22-204 were in effect. This section was retained from the 1928 Revised Code, § 3866. By the specific provisions of Rule 75(h), Section 21-1826, Id., it is not necessary for the record on appeal to be approved by the superior court or judge thereof. We hold that when the reporter's transcript has been designated as a part of the record it is not necessary that it be approved by the trial judge unless the correctness of the same is contested, as provided in Rule 75(h). This interpretation of the rule is in conformity with recent Federal decisions. See William Howard Hay Foundation v. Safety Harbor Sanatorium, Inc., 5 Cir., 1944, 141 F.2d 952, and Middleton v. Hartford Accident & Indemnity Co., 5 Cir., 1941, 119 F.2d 721. We hold that Section 22-204, Id., has been superseded and eliminated from our practice by the enactment of the new rules. * * *"

Our Rule VIII adopted May 1, 1937, is as follows: "If the abstract of record, transcript of the evidence, or appellant's opening brief be not filed within the time prescribed the appeal may be dismissed on motion upon notice given. If the abstract, transcript of the evidence, or opening brief, though not filed within the time prescribed, be on file at the time such notice is given, that fact shall be sufficient answer to the motion. * * *"

For the foregoing reasons the plaintiff's motion to dismiss on the first ground is denied.

Plaintiff next contends that the assignments of error presented by defendants fail to meet the requirements of Rule 12 of the Rules of this court. The specific objection is that defendants' assignments fail to state any grounds of error but merely point out the ruling to which he objects.

Of the twelve assignments submitted, the following, being the 1st, 6th and 12th, are typical examples:

"1. The lower Court erred in refusing to give defendants' requested Instruction No. 7.

"6. The lower Court erred in sustaining objections to the introduction into evidence of defendants' Exhibit No. 5 for identification, being the federal priority authorizing the construction of the house in issue.

"12. The lower Court erred in permitting the plaintiff to recover any amount in excess of $ 8,000.00, said $ 8,000.00 being the ceiling price for any house constructed pursuant to federal priority."

Our Rule 12 in reference to assignments of error, in so far as is pertinent here, is as follows:

"1. All assignments of error must distinctly specify each ground of error relied upon and the particular ruling complained of. * * *

* * *

"5. If the refusal to give an instruction asked for by appellant in the court below be assigned as error, the assignment must state the applicability of such instruction to the fact or facts in the case."

From this court's case of Ferrell v. Mutual Benefit, Health & Accident Ass'n, 48 Ariz. 521, 63 P.2d 203, in reference to assignments of error, we said:

"* * * We have adopted certain rules to guide parties in perfecting their appeals and in presenting the reasons therefor. These rules require that an appellant shall among other things point out to the court, definitely and clearly by assignment, the errors of which he complains. An examination of appellant's brief in ...