Tessitore v. McGilvra, 9655
| Decision Date | 03 December 1969 |
| Docket Number | No. 9655,9655 |
| Citation | 105 Ariz. 198,461 P.2d 675 |
| Parties | Steve TESSITORE, Appellant, v. R. I. McGILVRA, Seymour B. Silverman, George Scharf, and Maurice Rosenthal, dba Diagnostic Laboratory and Diagnostic Laboratory, Appellees. |
| Court | Arizona Supreme Court |
Finn & Meadow, by R. Y. Thrasher, Phoenix, for appellant.
Richard A. Black, Phoenix, for appellee, McGilvra.
Jack M. Anderson, Phoenix, for appellees, Silverman, Scharf and Rosenthal, dba Diagnostic Laboratory and Diagnostic Laboratory.
This opinion on rehearing is supplemental to our decision in Tessitore v. McGilvra, 105 Ariz. 91, 459 P.2d 716 (October 15, 1969). It is issued to correct an erroneous dismissal of the appeal in that case as to appellees Seymour B. Silverman, George Scharf, and Maurice Rosenthal, dba Diagnostic Laboratory and Diagnostic Laboratory.
In our previous opinion we dismissed the appeal as to these appellees because 'no formal written judgment was entered as required by Rule 58(a) Rules of Civil Procedure, 16 A.R.S.' On motion for rehearing appellant informs us that a formal written judgment was signed by a trial court judge and filed with the Clerk of the Superior Court.
The record on appeal in this case is not a model of procedure. Nowhere in the designation of contents of record on appeal, nor in the abstract of record, nor in the Superior Court record on appeal is there any indication of a formal written summary judgment against Silverman, Scharf, Rosenthal or Diagnostic Laboratory, hereafter referred to as 'the four defendants'. Indeed, a purported copy of the written summary judgment in favor of defendant McGilvra in the abstract of record shows 'Dated this _ _ day of October, 1966' but does not indicate a signature by the judge. There is a notation in parenthesis '(Unsigned form mailed October 13, 1966)'. Examination of the original judgment in the Superior Court file shows that it was signed by the judge and filed November 14, 1966.
Nowhere in the Superior Court file on appeal is there any written summary judgment signed by the judge, in favor of the four defendants. The only reference to such a judgment is found in a 'Stipulation and Order' in the Court of Appeals file, reading:
'A summary judgment having been signed in this action pertaining to defendants Seymour B. Silverman, George Scharf and Maurice Rosenthal, dba Diagnostic Laboratory, it is hereby stipulated that the appeal as to these defendants may be joined with the former appeal in this Court No. 1 CA-CIV 587 in all respects and that the various documents and briefs heretofore filed may be determined to adequately represent the views of the above named defendants in this matter.
'It is expressly stipulated that no further pleading is desired to be submitted by the foregoing defendants and that these defendants are to have their interests determined in this appeal as though the judgment of March 28, 1968 had been signed and filed at the outset of this appeal.
'IT IS ORDERED that the appeal as to the foregoing defendants is to be joined with the previous documents heretofore submitted in Case No. 1 CA-CIV 587.
'DONE IN OPEN COURT this 23rd day of April, 1968.
's/ James Duke Cameron
'Judge of the Court of Appeals'
This stipulation and order was filed April 23, 1968, some eighteen months after the original appeal. This occurred after the Court of Appeals had on March 15, 1968, dismissed, without prejudice, that portion of appellant's purported appeal against the four defendants which was attempted without filing of a written judgment as required by Rule 58(a) Rules of Civil Procedure, 16 A.R.S.
In order to complete the record we ascertained from the Clerk of the Superior Court that the judgment referred to in the stipulation had actually been signed and filed on March 28, 1968, and notice of appeal therefrom was filed April 10, 1968. Neither document was filed in the Court of Appeals. On our request the Clerk of the Superior Court completed the record by...
To continue reading
Request your trial
-
Evans v. Bernhard
...whom the motion was granted. Tessitore v. McGilvra, 105 Ariz. 91, 92, 459 P.2d 716, 717 (1969), supplemented on rehearing, 105 Ariz. 198, 461 P.2d 675 (1970). As the plaintiffs cannot rest on the mere allegations of their complaint when faced with a motion for summary judgment, Abernethy v.......
-
Hiser v. Randolph, 1
...be resolved by trial, the existence of a genuine issue of material fact has not been negated on the present record. See Tessitore v. McGilvra, 105 Ariz. 198, 461 P.2d 675, supplementing on rehearing 105 Ariz. 91, 459 P.2d 716 In view of the foregoing, it is unnecessary for us to consider pl......
-
Beeck v. Tucson General Hospital
... ... Tessitore v. McGilvra, 105 Ariz. 91, 459 P.2d 716 (1969), supplemented on rehearing, 105 Ariz. 198, 461 P.2d ... ...
-
Washington Nat. Trust Co. v. W. M. Dary Co.
...most favorable to the party opposing the motion. Tessitore v. McGilvra, 105 Ariz. 91, 92, 459 P.2d 716 (1969), supplemented, 105 Ariz. 198, 461 P.2d 675 (1969). The facts viewed in a light most favorable to appellant are these: The W. M. Dary Company is a corporation organized under the law......