Tarnoff v. Jones
| Decision Date | 24 June 1971 |
| Docket Number | No. 1,CA-CIV,1 |
| Parties | Joseph E. TARNOFF, Appellant, v. Jack C. JONES, Appellee. 1216. |
| Court | Arizona Court of Appeals |
Evans & Kuntz, Ltd., by Donald R. Kunz, James A. Simmons, Phoenix, for appellant.
Shimmel, Hill & Bishop, by John C. King, Phoenix, for appellee.
This is an appeal from the trial court's denial of appellant-defendant's Rule 60(c), 16 A.R.S. motion to vacate a default judgment entered against appellant-defendant in the trial court. In was appellant's contention in both the trial court and in this Court that the default judgment was void for the reason, among others, that the judgment differed in kind or exceeded in amount that prayed for in the complaint's demand for judgment, and thus was in violation of Rule 54(d). However, in view of matters belatedly brought to our attention by appellant in his reply brief, we do not find it necessary to rule upon the contentions urged by appellant, since in our opinion this Court is without jurisdiction and must dismiss the appeal.
In appellant's reply brief, in connection with appellant's argument concerning the possible Res judicata effect of an Illinois hearing and judgment based upon the prior Arizona default judgment which is the subject matter of this appeal, it was first brought to this Court's attention that the appeal from the default judgment was not a final judgment for the reason that the action involved another defendant whose liability had not been disposed of at the time of the entry of the default judgment against the appellant, nor was there any subsequent disposition of the claim against this other defendant prior to the initiation of this appeal. Under the provisions of Rule 54(b) 1, Rules of Civil Procedure, in order that a judgment rendered under such circumstances might have that degree of finality necessary to support an appeal, there must be an express determination by the trial court that there is no just reason for delay and an express direction for the entry of judgment. Here, neither the record nor the judgment contains such a determination and direction. There can be no question but that Rule 54(b) applies to default judgments. See Stevens v. Mehagian's Home Furnishings, Inc., 90 Ariz. 42, 365 P.2d 208 (1961); Stevenson v. Celaya, 10 Ariz.App. 203, 457 P.2d 743 (1969); Davis v. National Mortgage Co., (2nd Cir. 1963), 320 F.2d 90. See also Anno. 38 A.L.R.2d 377, (Operation and Effect of F.C.P. Rule 54(b)) and the recent cases cited in A.L.R.2d Later Case Service.
In view of the time which has passed and the expense involved in presenting this appeal to this Court, we are somewhat reluctant to dismiss the appeal without a consideration of the merits, but we are of the opinion that under the circumstances where our lack of jurisdiction is so clearly presented, we have no other alternative. Accordingly, the appeal is dismissed. If after remand of this matter to the Superior Court, proper application is made to the Superior Court, and that Court, In its...
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Osuna v. Wal-Mart Stores, Inc.
...(1972); see also Stevens v. Mehagian's Home Furnishings, Inc., 90 Ariz. 42, 45, 365 P.2d 208, 210 (1961); Tarnoff v. Jones, 15 Ariz.App. 88, 90, 486 P.2d 200, 202 (1971). Because Osuna does not argue she should be afforded such an opportunity here, we do not address this argument ¶ 16 Lastl......
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Thompson v. Goetz
...the entry of a final judgment for the order to be appealable. See Bieganek v. Taylor, 801 F.2d 879 (7th Cir.1986); Tarnoff v. Jones, 15 Ariz.App. 88, 486 P.2d 200 (1971). We have said that the term "claims" is used in a general sense in Rule 54(b) to include "issues." Sargent County Bank v.......
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Sullivan & Brugnatelli Advertising Co., Inc. v. Century Capital Corp., 1
...default judgment was not a final judgment within the meaning of Rule 54(b). Rule 54(b) applies to default judgments. Tarnoff v. Jones, 15 Ariz.App. 88, 486 P.2d 200 (1971). When there are multiple defendants, as there were in this case, a default judgment against one defendant is not a fina......
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Tarnoff v. Jones
...did not dispose of the claim against defendant Gaiber nor contain the statutory language required by Rule 54(b) 3 this court held in Tarnoff v. Jones, Supra, that the judgment was not final and hence not appealable. The doctrine of Res judicata does not apply to an interlocutory judgment. H......