State ex rel. Morrison v. Jay Six Cattle Co.

• Decision Date: 25 February 1959
• Docket Number: No. 6720,6720
• Parties: STATE of Arizona ex rel. Robert MORRISON, Attorney General, Appellant, v. JAY SIX CATTLE COMPANY, Inc., a corporation; P. C. Getzwiller and Marian T. Getzwiller, his wife, Appellees.
• Court: Arizona Supreme Court

Page 799

335 P.2d 799

85 Ariz. 220

STATE of Arizona ex rel. Robert MORRISON, Attorney General, Appellant, v. JAY SIX CATTLE COMPANY, Inc., a corporation; P. C. Getzwiller and Marian T. Getzwiller, his wife, Appellees.

No. 6720.

Supreme Court of Arizona.

Feb. 25, 1959.

Robert Morrison, Atty. Gen., Ccharles L. Hardy, Asst. Atty. Gen., for appellant.

James Elliott Dunseath and Robert C. Stubbs, Tucson, for appellees.

PHELPS, Chief Justice.

We are presented here with the question of whether the State of Arizona may appeal from a judgment in condemnation proceedings in a case wherein it believes the damages awarded to be excessive and that errors of law were committed in the reception of evidence and where under the law and pursuant to stipulation and an order of court, the condemnees have been paid the full amount of their judgment, satisfied the same upon the records of the court, and filed an abandonment of all defenses to the action except as to the amount of damages. The parties will be hereinafter designated as the State and appellees.

The facts are that the State instituted condemnation proceedings against appellees involving certain land approximately seven miles west of Benson, Arizona, which the State needed for highway purposes. Under the provisions of A.R.S. § 12-1116 the State had entered into the possession of said property and began construction of the new highway. Thereafter trial was had and judgment was entered by the court on June 6, 1958, awarding damages therefor to appellees respectively. The State had paid the full amount of said judgment into the court under the provisions of A.R.S. § 12-1116 and § 12-1127; and a stipulation entered into between counsel for the State and the appellees. The appellees made application to the court to order the money which had been deposited with it by the State to be paid to them. The court entered such an order on August 18, 1958, following, and on September 2, 1958, appellees satisfied their respective judgments in full. The State had theretofore on July 22 filed its notice of appeal to this court. On October 3 appellees filed their motion to dismiss the appeal. It is the issue raised by this motion that we now consider. We deem the matter of sufficient importance to require a written opinion.

In the first place, A.R.S. § 12-2101 is authority for the right of the State to appeal, and Rule 73(a) of the Rules of Civil Procedure, 16 A.R.S., provides that:

'A judgment or order in a civil action or proceeding may be reviewed by appeal as prescribed in these Rules, and not otherwise. The appeal may be taken by any party aggrieved by such judgment or order.'

This, without the aid of other authority, gives to the State the right of appeal as an aggrieved party.

We are not too much persuaded by the argument of counsel for appellees that the State waived its right to further prosecute its appeal by the chain of events recited therein, to wit: (1) by the voluntary payment of the amount of said judgment; (2) by taking possession of the property condemned; (3) by using and appropriating appellees' property which had been condemned in the action. All of the above acts of the State were done pursuant to the provisions of the Constitution and the statutes relating to eminent domain.

It is argued that pursuant to a stipulation between counsel for the parties litigant, the superior court ordered the money deposited in court by the State to be paid to appellees upon their filing a satisfaction of judgment and an abandonment of all defenses to the action except as to the amount of damages to which they may be entitled; that by such stipulation and action of the court the State waived its right of appeal. We have carefully read the stipulation and are definitely of the view that it gave to appellees nothing they were not entitled to under the law nor did it bind the State to do anything it was not bound to do under th law. '* * * enforced satisfaction of a judgment does not prevent the prosecution of an appeal therefrom by the defendant.' Hartke v. Abbott, 106 Cal.App. 388, 289 P. 206, 207. The State here became the judgment debtor and under the statute was forced to pay upon demand by the owner.

Article 2, section 17 of the Arizona Constitution, A.R.S., insofar as here material provides that:

'* * * No private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into court for the owner, * * *.'

A.R.S. § 12-1116 provides that the State may, at the time of filing the complaint, or any time thereafter, make application to the court for possession of the property sought to be condemned. Thereupon the court fixes a time for hearing, giving proper notice thereof, and if it appears that the use for which it is sought to be condemned is a necessary use, the court proceeds to hear evidence as to the probable damages to the owner, and may then order that upon the deposit by the condemnor of double the amount of the probable damages found by the court, the plaintiff (condemnor) may be let into full possession and full use of the land. The money is to be deposited with the clerk of the court and held by him for the use and benefit of the condemnee (owner) subject to final judgment of the court, etc., and until ordered by the court to be turned over to condemnee, or the court may order such money to be turned over to the state treasurer for the same purpose. Counsel for the State asserts that the State took possession of the land under and in accordance with the provisions of A.R.S. § 12-1116, supra.

A.R.S. § 12-1127, in pertinent part, provides that:

'A. At any time after judgment is entered, or pending an appeal from the judgment to the supreme court, when plaintiff has paid into court for defendant or defendants the full amount of the judgment, and such other amounts as required by the court as a fund to pay further damages and costs which may be recovered in the proceedings, as well as all damages that may be sustained by defendant or defendants if for any cause the property is not finally taken for public use, the superior court in which the action was tried may, upon notice of not less than ten days, authorize plaintiff, if already in possession, to continue therein, or if not, then to take possession of and use the property until final conclusion of the litigation, and may, if necessary, stay all actions and proceedings against plaintiff on account thereof.

'B. The defendant or defendants who are entitled to the money paid into court upon any judgment may demand and receive the money at any time thereafter upon an order of the court. The court shall, upon application, order the money so paid into court delivered to the party entitled thereto upon his filing either a satisfaction of the judgment or a receipt for the money, and an abandonment of all defenses to the action or proceeding except as to the amount of damages to which he may be entitled if a new trial is granted. Such payment shall be deemed an abandonment of all defenses, except the party's claim or greater compensation.

'C. The money paid into court on final judgment may be placed by order of court in the custody of the clerk or state treasurer to be held or disbursed upon order of court, and plaintiff and such officers shall be subject to the same responsiblity, liabilities and restrictions with respect thereto as provided in this article when money is paid into court by plaintiff upon application for possession before trial.' (Emphasis supplied.)

Subsection 'D' is not material here and will not be quoted.

It is obvious from the provisions of the Constitution and laws of this state that private property may not be taken for public use without just compensation having first been made or paid into court for the owner. The portion of the Constitution quoted above is mandatory. From a practical standpoint it is further obvious that the State must have the authority to enter into possession of the property immediately instead of waiting one or two years for a final judgment on appeal in condemnation proceedings. The legislature therefore in enacting A.R.S. § 12-1116 and § 12-1127 provided for this exigency.

In like circumstances and under a similar condemnation statute, a California appellate court has ruled that an appeal by the condemnor would not lie. Mt. Shasta Power Corporation v. Dennis, 66 Cal.App. 186, 225 P. 877. Although the authority of that decision appears not to have been later questioned, its supportive reasoning seems impaired, however, by analysis in the unanimous opinion of the California Supreme Court in Reitano v. Yankwich, 38 Cal.2d 1, 237 P.2d 6, 7, 39 A.L.R.2d 191, wherein the court noted that: (1) the rule barring an appeal by one who has voluntarily accepted the benefits of a judgment "* * * has no application where the benefits accepted are such that appellant is admittedly entitled to them or would not be affected or put in jeopardy by the appeal" and (2) a voluntary satisfaction of a judgment deprives one of a right to appeal "* * * only when it is shown that the payment of the judgment was by way of compromise or with an agreement not to take or prosecute an appeal."

In any event, we find nothing in the Arizona condemnation statute quoted, and nothing which inherently flows from the conduct of the State herein, which was in every particular in accordance with the provisions of the statute, that impairs the State's right of appeal as an aggrieved party under A.R.S. § 12-2101 and Rule 73(a) of our Rules of Civil Procedure. Indeed, A.R.S. § 12-1127, pararaph A, setting forth the procedural steps by which the State may gain use of property after judgment is entered 'or pending an appeal' therefrom, seems to contemplate a right of appeal by the State, just as paragraph B implies a right of appeal by the condemnee, as to the amount of damages. True, the statute does not explicitly provide for recovery...