Steinfeld v. Nielsen

• Decision Date: 27 January 1913
• Docket Number: Civil 1088
• Citation: 15 Ariz. 424,139 P. 879
• Parties: ALBERT STEINFELD and HIRAM W. FENNER, Reciever of the NIELSEN MINING & SMELTING COMPANY, a Corporation, Now known as and called the SILVER BELL COPPER COMPANY, a Corporation, Appellants, v. MARY NIELSEN, Administratrix of the Estate of CARL S. NIELSEN, Deceased, and MARY NIELSEN, in Her Own Personal Right, Appellee
• Court: Arizona Supreme Court

139 P. 879

15 Ariz. 424

ALBERT STEINFELD and HIRAM W. FENNER, Reciever of the NIELSEN MINING & SMELTING COMPANY, a Corporation, Now known as and called the SILVER BELL COPPER COMPANY, a Corporation, Appellants, v. MARY NIELSEN, Administratrix of the Estate of CARL S. NIELSEN, Deceased, and MARY NIELSEN, in Her Own Personal Right, Appellee

Civil No. 1088

Supreme Court of Arizona

January 27, 1913

On motion for rehearing, April 16, 1914. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

OPINION

FRANKLIN, C. J.

One who is familiar with the delightful comedies of Moliere cannot fail to remember his faculty to imbue in great degree farce and burlesque with the true spirit of refined comedy. In one instance he depicts with rare delicacy and humor the situation of two doctors; a Doctor Tant-mieux (so much the better), and a Doctor Tant-pis (so much the worse). Like unto a dialogue between hope on its feet and despair taking to its bed, these doctors were expected never to agree; nay, they never did nor could agree. The theater of this appeal presents a situation curious too, in that the appellant and the appellee cannot agree on anything or in any particular. They differ about the law, about the facts, on the opinion of this court in the instant case, on the language and effect of former decisions of this court, on the jurisdiction of this court, on the procedure governing its deliberations, and the scope and extent of, and the limitations upon, its power to review and pronounce judgment. The cause in its progress toward a final determination of the rights of the parties has had a varied career, and not without its vicissitudes, which have, perhaps, been more common to it than attends ordinarily the passage of litigation. The action was commenced in 1905, and its progress has been delineated in the principal opinion. It is sufficient here to state that the judgment of the trial court, in favor of the appellee, has, on appeal, and on a consideration by the appellate court of the law and the facts, been held both by the supreme court of the territory and the supreme court of this state to be erroneous. A rehearing of the case was asked in the supreme court of the territory and denied. On appeal to the supreme court of the United States, that court, "considering the whole situation," treated the case upon the theory that the territorial supreme court committed reversible error in adopting the findings of fact made by the trial court, and in not certifying to the supreme court of the United States findings of fact proceeding from its own conscience as required by the federal statute.

From the judgment of this court the appellee has asked for a rehearing. The motion for rehearing was filed February 10, 1913, and on August 27, 1913, an amended motion for a rehearing was filed which is inadvertently stated to have been done by leave of this court; but, as no objection has been made by appellant on that score, we shall in this instance consider the amended motion filed by leave granted. Under the rule an amended motion for rehearing may not be filed without leave of the court. The court has indulged counsel on both sides in the filing of many briefs on the one side in support of the motion and on the other side in objection to it; the last brief having been filed January 23, 1914. The briefs present a painstaking essay to spare no point which might affect the decision of the cause, and able and skillful efforts to enlighten the court in every possible way. As we have said, there is an absolute lack of harmony between the parties in every matter and in every particular of the matter. Nothing but a knitting up by the appellee and a raveling out by the appellant, and no progress is or will be discernible whatever unless we are capable of eliciting from the sea of things the fractions which are cardinal. Unless we are capable of doing this, the opinion will become one long drawn out. This task, for the sake of brevity, we must apply ourselves to, and all others omit.

The opinion of the supreme court of the state in this cause was filed on January 27, 1913, and in the amended motion for a rehearing filed by appellee more than six months thereafter a matter is for the first time suggested affecting the jurisdiction of both the territorial supreme court and this court on the appeal. It is asserted that the notice of appeal and the bond on appeal are insufficient to give this court jurisdiction of the appeal.

Paragraph 1493 of the Revised Statutes of Arizona of 1901 provides: An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment or order is rendered by appellant giving notice of appeal in open court, which shall be noted on the docket and entered of record, and by filing with the clerk an appeal bond or affidavit in lieu thereof, as hereinbefore provided, during the term or within twenty days after the expiration of the term.

Within the time prescribed by the statute, the appellant gave notice of appeal in open court, which was entered of record in language as follows: "Come now the defendants herein and except to the ruling of the court in rendering a judgment in favor of the plaintiff and in overruling their motion for a new trial herein, and give notice of appeal to the supreme court of the territory." The bond on appeal describes the judgment and recites an appeal from the judgment, but does not recite an appeal from the order overruling the motion for a new trial. The language of the minute entry indicates beyond the peradventure of a doubt that it was the intention of the appellant to take an appeal from both the judgment and the order overruling the motion for a new trial. The notice recites the judgment and order and excepts to the ruling of the court, and gives notice of appeal to the supreme court of the territory. The ruling excepted to embraced both the judgment and order overruling the motion for a new trial.

Analyzing the notice hypercritically, we think it evident that the notice is a sufficient taking of the appeal from the judgment and the order.

In perfecting such appeal the bond did not recite the order overruling the motion for a new trial, but was limited to the judgment. The appeal is taken by giving the notice; it is perfected by giving the bond. Does the failure of the bond to recite the order overruling the motion for a new trial destroy the jurisdiction of this court on the appeal, or does it merely affect its jurisdiction? In other words, if this court has jurisdiction of the appeal, to what extent may the exercise of that jurisdiction go in its disposal? We must note this with some care, though strive to do it compendiously that reproach may not argue a deficiency of perception as to what the pronouncements of this court have been on this subject.

In the Revised Statutes of 1887, the chapter on appeals and writs of error provided for but one appeal, to wit, an appeal from the judgment; only one writ of error, to wit, from the judgment. Paragraph 846 says: "An appeal or writ of error may be taken to the supreme court from any final judgment of the district court rendered in civil cases." The appellate jurisdiction of the court was limited to final judgments. But on appeal from a final judgment, the exercise of that jurisdiction was prescribed, the scope and power of its review indicated. The supreme court shall have jurisdiction to review upon appeal, or other proceedings provided by law. This is the language of paragraph 593, Revised Statutes of 1887. The statute then proceeds to enumerate the particulars and indicates the extent of the exercise of its jurisdiction or scope of its power of review on appeal from the judgment, which by recital includes the power or jurisdiction to review an order granting or refusing a new trial, sustaining or overruling a demurrer, or affecting a substantial right in an action or proceeding. The appeal must be from the judgment, and no provision is made for direct appeal from the order, but if from the judgment, the power of review is extended to and embraced the order.

Let us carefully note the language used in the revision of 1901. The wording is significant. The first part of paragraph 1493, Revised Statutes of 1901, is identical with paragraph 846, Revised Statutes of 1887. Paragraph 1493, supra, reads: "An appeal or writ of error may be taken to the supreme court from any final judgment of the district court rendered in civil cases, and from any of the orders mentioned in section 1214, which the supreme court has jurisdiction to review." The last part of the paragraph just quoted, which was added by the revision of 1901 to the statute of 1887, has a most important bearing in considering what was the purpose and intention of the legislature in thus ingrafting such language on that of the earlier statutory expression. That the language was used advisedly we are persuaded, and that its purpose is clear we are convinced.

Reconnoitering on the statute fields of 1887 and 1901, it does not require a glass to see that there is but one appeal, but one writ of error, contemplated and provided. Under the statutes of 1887 the appeal was from the judgment, and the extent of the court's power to review on such appeal was provided by the statute. Under the statutes of 1901, there is an appeal from the judgment and from any of the orders mentioned in section 1214, which the supreme court has...