Slaughter v. First Nat. Bank of Albuquerque,, New Mexico

• Decision Date: 14 May 1928
• Docket Number: Civil 2638
• Citation: 34 Ariz. 26,267 P. 416
• Parties: MRS. GRACE SLAUGHTER, as Administratrix of the Estate of PASCHAL SLAUGHTER, Deceased, Appellant, v. FIRST NATIONAL BANK OF ALBUQUERQUE, NEW MEXICO, a Corporation, Appellee
• Court: Arizona Supreme Court

267 P. 416

34 Ariz. 26

MRS. GRACE SLAUGHTER, as Administratrix of the Estate of PASCHAL SLAUGHTER, Deceased, Appellant, v. FIRST NATIONAL BANK OF ALBUQUERQUE, NEW MEXICO, a Corporation, Appellee

Civil No. 2638

Supreme Court of Arizona

May 14, 1928

APPEAL from a judgment of the Superior Court of the County of Apache. E. Elmo Bollinger, Judge. Appeal dismissed.

Mr Dodd L. Greer, for Appellant.

Messrs Favour & Baker and Mr. Don T. Udall, for Appellee.

OPINION

LOCKWOOD, J.

After the appeal involved herein was filed in this court, appellee moved to dismiss the same on the ground that it was prematurely taken. When the motion was presented, we ordered that it be passed and determined at the same time the case was heard on its merits. After examining the record and considering the matter carefully, we are of the opinion the appeal can and should be disposed of on the motion to dismiss. Inasmuch as the point on which such motion is determined is of considerable importance in governing future practice on appeals taken under certain circumstances, we think it advisable that, contrary to our usual practice, we should state the reasons for the dismissal. In order that they may be understood, it is necessary that we review briefly the undisputed facts of the case, so far as material to the decision.

The First National Bank of Albuquerque, a corporation, appellee herein, brought suit in the superior court of Apache county against Mrs. Grace Slaughter, as administratrix of the estate of Paschal Slaughter, deceased, appellant herein, on a promissory note for $2,900 alleged to have been given to appellee's predecessor in interest by deceased. On the trial of the case, appellant did not deny the execution of the note or the making of the loan which it evidenced to deceased, or that it had never been paid. She admitted that she knew of the existence of the note; that she had promised appellee to take care of it, and had even made, as administratrix, payments of interest thereon. Her sole defense was based on the allegation that appellee's claim against the estate of her decedent had not been presented to her strictly in accordance with the time and form prescribed by the statute. The case was tried to a jury, which returned answers to certain special interrogatories submitted to them. The presiding judge was judge of the superior court of Mohave county, and, after the case had been submitted to the jury, but before their answers were returned, he left Apache county, and returned to Mohave county, ordering that all papers be forwarded to him at Kingman. The answers to the interrogatories were, in pursuance of a stipulation of the parties, received by the local judge, and the clerk transmitted them, together with the files in the case, to Kingman.

So far as the record before us shows, no minute entries were ever made in the case after the one showing the return of the interrogatories and their transmission as above. There appears, however, in the record the following document, marked as filed October 21st, 1926:

"Decision.

"Filed Oct. 21st, 1926.

"After careful consideration of this case and of the answers to the interrogatories as made by the jury impaneled herein, the court finds in favor of the plaintiff, and decides that plaintiff is entitled to a judgment as prayed for.

"Therefore, it is ordered, adjudged, and decreed that judgment be, and the same is hereby, rendered in behalf of the plaintiff, in accordance with this decision, together with the costs of suit.

"Thus done and assigned at Kingman on this the 19th day of October, 1926.

"E. ELMO BOLLINGER,

"Trial Judge," -- and a letter marked as filed November 22d, 1926, which appears below:

"Notice of Decision.

"Filed 11-22-26.

"St. Johns, Arizona, November 22, 1926.

"Messrs. Favour & Baker and Dodd L. Greer -- Gentlemen: In re Case No. 1902, First National Bank of Albuquerque, N.M., v. Grace Slaughter.

"You are hereby notified that Judge Elmer Bollinger, who presided at the trial of this case, has rendered his decision in said entitled action, and the same is now on file in this office.

"GEORGE E. WAITE.

"Clerk of the Superior Court."

A motion for a new trial, filed December 1st, 1926, and an order denying such motion, filed January 5th, 1927, are also in the record, together with the following notice of appeal, marked as filed March 28th, 1927:

"Notice of Appeal.

"Filed March 28th, 1927.

"Notice is hereby given that the above-named defendant, Grace Slaughter, as administratrix of the estate of Paschal Slaughter, deceased, appeals to the Supreme Court of the state of Arizona from the judgment rendered in said court in the above-entitled cause on the 12th day of November, 1926, in favor of the above-named First National Bank of Albuquerque, New Mexico, plaintiff, in said action and against the said Grace Slaughter, as administratrix of the estate of Paschal Slaughter, deceased, and from the whole thereof.

"Dated at St. Johns, Arizona, this 28th day of March, A.D. 1927.

"DODD L. GREER,

"Attorney for Defendant."

The appeal being by the administratrix in her official capacity, no appeal bond was filed, in accordance with paragraph 1250, Revised Statutes of Arizona of 1913, Civil Code. On April 4, 1927, findings of fact, conclusions of law, and a formal judgment in favor of appellee, signed by the trial judge, and dated November 15th, 1926, were filed in the office of the clerk, and duly recorded in the judgment record the same day. No minute entry referring to any of the documents above mentioned is found in the record. It is contended by appellee that there was on the 28th of March, 1927, the date on which the notice of appeal was filed, no judgment from which an appeal could be taken legally, and that, under the decisions of this court, the appeal herein should therefore be dismissed for want of jurisdiction.

This case, as we have stated, was tried by the judge of the superior court of Mohave county, sitting in Apache county, and no judgment was rendered from the bench in Apache county by him. The judgment was rendered under the provisions of paragraph 346, Revised Statutes of Arizona of 1913, Civil Code, which read as follows:

"Whenever the judge of a superior...