Sweeney v. Winslow Gas Co.

• Citation: 64 Ariz. 51,165 P.2d 316
• Decision Date: 14 January 1946
• Docket Number: 4869
• Parties: SWEENEY v. WINSLOW GAS CO
• Court: Supreme Court of Arizona

165 P.2d 316

64 Ariz. 51

SWEENEY v. WINSLOW GAS CO

No. 4869

Supreme Court of Arizona

January 14, 1946

Appeal from Superior Court, Navajo County; W. E. Ferguson, Judge.

Appeal dismissed.

Wilson Compton & Wilson, of Flagstaff, for appellant.

Floyd M. Stahl, of Phoenix, and C. D. McCauley, of Winslow, for appellee.

Stanford C. J., LaPrade, J., and Walsh, Superior Judge, concur.Note Judge Joseph H. MORGAN, being disqualified, Hon. James A WALSH, Judge, Superior Court, Maricopa County, was called to sit in his stead.

OPINION

Stanford C. J.,

J. L. Sweeney, appellant, brought an action against Winslow Gas Company, a corporation, for personal injuries alleged to have been suffered due to the alleged negligence of the gas company. The case was tried to a jury and resulted in a verdict and judgment for the defendant company. From this judgment and the order denying plaintiff's motion for a new trial, appellant appealed to this court. Appellee has filed a motion to strike the reporter's transcript of the evidence, and a motion to dismiss the appeal. The motion to strike the reporter's transcript is grounded upon the fact that it was not filed with the clerk of the superior court within the time prescribed by Section 22-202, A.C.A.1939.

The motion to dismiss the appeal is predicated upon the fact that the record on appeal was not transmitted to the supreme court within the time required by the provisions of Rules 73(g) of the Rules of Civil Procedure (Section 21-1817, Id.) or within any extension of time made or granted for transmitting said record on appeal. Appellee also presents the additional ground for dismissal that the appellant did not comply with the provisions of Rule 75(d) (Section 21-1822, Id.) in that, not having designated for inclusion the complete record, he failed to serve a concise statement of the points on which he intended to rely on appeal. Our disposition of the first ground of the motion to dismiss the appeal obviates any necessity for passing upon the second ground of the motion to dismiss. The authority of this court to entertain these motions and make such disposition thereof as it deems appropriate, including the power to order the dismissal of the appeal, is conferred by Rule 73(a) (Section 21-1802, Id.). See In re Gammill, 7 Cir., 129 F.2d 501. Rule 73(a) reads as follows: "Effect of failure to complete. -- When an appeal is permitted by law to the Supreme Court, a party may appeal by filing with the superior court, within the time prescribed in Rule 72 (§ 21-1801), a notice of appeal. Failure of the appellant to take any of the further steps to secure the review of the judgment or order appealed from does not affect the validity of the appeal, but is ground only for such remedies as are specified in this rule or, when no remedy is specified, for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal."

We here set forth in chronological order the dates and events in the record after motion for a new trial was denied:

May

18, 1945

Order denying motion for a new trial.

June

29, 1945

Notice of Appeal filed (Date on no-

tice May 29)

July

16, 1945

Order of judge of superior court "that

time for filing transcript of record

on appeal is extended thirty days."

Aug.

9, 1945

Order of superior court extending

to August 25 time within which to file

and serve transcript of the evidence.

Aug.

24, 1945

Order of the superior court extending

for "thirty days as from today"

time within which to file reporter's

transcript of the evidence.

Sept.

17, 1945

Date on which court reporter certi-

fied transcript of the evidence.

Oct.

2, 1945

Plaintiff filed with clerk of superior

court his designation of contents of

record that he required on appeal and

included in this designation the tran-

script of reporter's notes.

Oct.

3, 1945

Transcript of the evidence filed with

clerk of superior court.

Nov.

10, 1945

Transcript of evidence presented to

judge and certified by him as correct.

Nov.

13, 1945

Record on appeal, including tran-

script of evidence, transmitted by

clerk of superior court to clerk of

supereme court.

Nov.

20, 1945

Record on appeal, including tran-

script, filed with clerk of supreme

court.

From the foregoing statement of dates and events it will be noted that the notice of appeal was dated May 29th but not filed until June 29th.The rule relating to the transmission of the record on appeal is Rule 73(g) (Section 21-1817, Id.) and reads as follows: "Transmitting record on appeal. -- The record on appeal as provided for in Rules 75 and 76 (§§ 21-1819-21-1829 and 21-1830) shall be transmitted to the Supreme Court within forty (40) days from the date of the notice of appeal; except that, when more than one (1) appeal is taken from the same judgment, the superior court may prescribe the time for transmitting, which in no event shall be less than forty (40) days from the date of the first notice of appeal. In all cases the superior court in its discretion and with or without motion or notice may extend the time for transmitting the record on appeal, if its order for extension is made before the expiration of the period for transmitting as originally prescribed or as extended by a previous order; but the superior court shall not extend the time to a day more than ninety (90) days from the date of the first notice of appeal."(Emphasis supplied.)

This rule provides that the record must be transmitted within forty days from the date of the notice of appeal. We hold that the word "date" does not refer to the date line in the notice, but to the date or time when the notice is filed. To make the appeal effective the notice of appeal must be filed with the superior court. Rule 72 (Section 21-1801, Id.); In re Guanajuato Reduction & Mines Co., D.C.N.J.1939, 29 F.Supp. 789, 41 Am.Bankr.Rep., N.S., 3. The emphasis throughout the various rules is always on the filing date of the notice of appeal. See Rule 72 (Section 21-1801, Id.), Rule 75(g) Section 21-1825, Id.), and Rule 76 (Section 21-1830, Id.).

The motion of the appellee to strike the reporter's transcript is specifically grounded on Section 22-202, Id., which section, prior to the adoption of the new rules, prescribed the time within which a statement of facts or a transcript of the court reporter's notes might be filed. This section reads as follows: "Time for filing reporter's transcript. -- Within sixty (60) days after the entry of judgment, or of an order denying a motion for a new trial, or granting or denying a motion in arrest of or to set aside a judgment, or within such additional time as may be stipulated between the parties, or allowed by the court by an order in the action, either party may file with the clerk of the court a statement of facts or a transcript of the court reporter's notes. Where the ruling appears otherwise of record a statement of facts, or transcript is not necessary to present such ruling for review."

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.). Section 19-204, supra, specifically provides that "All statutes relating to pleading, practice and procedure, existing at the time this act takes effect shall be deemed to be rules of court and shall remain in effect as such until modified or suspended by rules promulgated pursuant to this act." See Burney v. Lee, 59 Ariz. 360, 129 P.2d 308.

This court takes judicial notice that the Rules of Civil Procedure became effective January 1, 1940. Beginning with Rule 72 (Section 21-1801), these rules govern the procedure on appeal. Rule 75(a) (Section 21-1819, Id.) requires that "Promptly after an appeal to the Supreme Court is taken, the appellant shall serve upon the appellee and file with the superior court a designation of the portions of the record, proceedings, and evidence to be contained in the record on appeal. Within ten (10) days thereafter any other party to the appeal may serve and file a designation of additional portions of the record, proceedings, and evidence to be included." (Emphasis supplied.) Rule 72 (Section 21-1801, Id.) provides that the notice of appeal must be filed within sixty days from the entry of the judgment or order appealed from. After the notice of appeal is filed, the appellant shall promptly file his designation of the record required on appeal. Rule 75(b) (Section 21-1820) provides that: "If there be designated for inclusion any evidence or proceedings at a trial or hearing which was stenographically reported, the appellant shall file with his designation two (2) copies of the reporter's transcript of the evidence or proceedings included in his designation. If the designation includes only part of the reporter's transcript, the appellant shall file two (2) copies of such additional parts thereof as the appellee may need to enable him to designate and file the parts he desires to have added, and if the appellant fails to do so the court on motion may require him to furnish the additional parts needed. One of the copies so filed by the appellant shall be available for the use of the other parties."

Clearly this rule, which is an affirmative change made by the Rules of Civil Procedure requires only that the reporter's transcript be filed at the time the designation of the record on appeal is filed.

We believe it advisable here to point out to the members of the state bar that in order to successfully perfect an appeal and actually get the record in the Supreme Court meticulous attention...