Southwestern Freight Lines, Ltd. v. Shafer, Civil 4381

• Decision Date: 22 March 1941
• Docket Number: Civil 4381
• Citation: 111 P.2d 625,57 Ariz. 111
• Parties: SOUTHWESTERN FREIGHT LINES, LTD., a Corporation, and E. L. NORTHCUTT, an Individual, d.b.a. E.L. NORTHCUTT FREIGHT LINES, Appellants, v. NORMA SHAFER, by Her Guardian Ad Litem, Bernice Bailey, Appellee
• Court: Arizona Supreme Court

111 P.2d 625

57 Ariz. 111

SOUTHWESTERN FREIGHT LINES, LTD., a Corporation, and E. L. NORTHCUTT, an Individual, d.b.a. E.L. NORTHCUTT FREIGHT LINES, Appellants, v. NORMA SHAFER, by Her Guardian Ad Litem, Bernice Bailey, Appellee

Civil No. 4381

Supreme Court of Arizona

March 22, 1941

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. On motion to dismiss appeal. Motion denied.

Messrs Struckmeyer & Flynn, for Appellants.

Mr Fred V. Moore and Mr. E. E. Selden, for Appellee.

OPINION

LOCKWOOD, C.J.

Ordinarily we do not write opinions on motions of this nature, but in view of the fact that it involves the construction of several sections of the new rules of civil procedure, we think it best for the guidance of the bar and trial courts in the future that we depart from our usual custom. The facts necessary to a determination of the motion are as follows.

The case came on regularly to be heard before the court sitting with a jury on October 24, 1940. On October 26 the jury returned a verdict in open court in favor of plaintiff and against defendants, in the amount of $5,000. When the clerk read the verdict, counsel for plaintiff moved for judgment on the verdict, and the following order was made by the court:

"It is ordered that upon the presentation of a formal written judgment by the plaintiff, its approval and signing by the judge and filing thereof with the clerk of the court, judgment will be rendered in favor of the plaintiff and against the defendants in conformity with the verdict."

This order was entered in the civil docket of the court on the aforesaid date. On October 29 a judgment fee of $10 was paid by plaintiff, which was also duly entered. On December 2 a formal written judgment was signed by the trial judge in open court, filed with the clerk of the court, and the following entry made in the minutes:

"A formal written Judgment in this action having this day been presented to and approved and signed by the court, it is ordered that judgment be rendered in favor of the Plaintiff and against the defendants in conformity therewith in cause No. 48520."

A motion for new trial was filed, argued and denied on the same day. On December 23 the following notice of appeal was given:

"Notice is hereby given that Southwestern Freight Lines, Ltd., a corporation, and E. L. Northcutt, an individual d.b.a. E. L. Northcutt Freight Lines, defendants in the above entitled action, and each of them, appeal to the Supreme Court of the State of Arizona from the judgment heretofore rendered and entered herein on the 29th day of October, 1940, in favor of the plaintiff and against the defendants, and each of them, and from the whole thereof, and further appeal to the Supreme Court of the State of Arizona, from the order of the Superior Court heretofore made and entered herein on the 2nd day of December, 1940, denying the defendants' motion for an order setting aside the judgment in favor of the plaintiff and entering judgment for the defendants, and from the order denying the defendants' motion for a new trial."

The motion to dismiss was based upon the ground that judgment was not rendered until December 2, while the appeal is from the alleged judgment rendered on October 29, and that no judgment was rendered upon such a date. The precise question before us, then, is when was the judgment effective. If on October 29, as contended by defendants, the motion should be denied. If on December 2, as urged by plaintiff, then the appeal is from a judgment which does not exist and it should be dismissed.

The present rules of civil procedure were adopted by this court under the authority of section 19-202, Arizona Code, 1939. The purpose of granting this power to the court was stated by the legislature to be, among other things, "promoting the speedy determination of litigation upon its merits." We have, therefore, adopted the principle that in interpreting the various provisions of the rules adopted thereunder, we shall, if there is any ambiguity or doubt as to their meaning, give that construction which will tend to promote a decision upon the merits rather than upon formal procedure. The particular rules in question are sections 21-1230, 21-1910 and 21-1911, and 34-110, Arizona Code, 1939, which read, respectively, as follows:

"Entry of judgment. Judgmant shall be entered when the court so directs. When the direction is that a party recover only money or costs, or that there be no recovery, the clerk shall enter judgment forthwith upon receipt by him of the direction, but when the direction is for other relief, the judge shall first promptly settle and approve the form of judgment. In cases of judgments for money or costs only, or that there be no recovery, the notation thereof in the civil docket, as provided by rule 79 (a) (Sec. 21-1910) constitutes the entry of such judgment, and in cases granting any other relief, filing with the clerk of a form of judgment settled and approved, in writing, by the judge, for recording in the civil order book, as provided by Rule 79 (b) (Sec. 21-1911) constitutes the entry of such judgment, and in either case the judgment is not effective before such entry."

"Civil docket. The clerk shall keep a book known as a 'Civil Docket' of such form and style as may be prescribed by the Supreme Court, and shall enter therein each civil action to which these rules are made applicable. Actions shall be assigned consecutive file numbers. The file number of...