Town of Flagstaff v. Gomez

• Decision Date: 10 December 1921
• Docket Number: Civil 1858
• Citation: 23 Ariz. 184,202 P. 401
• Parties: TOWN OF FLAGSTAFF, a Municipal Corporation, McLEAN & WALSH, a Partnership Composed of NEAL McLEAN and WILLIAM D. WALSH, and NEAL McLEAN and WILLIAM D. WALSH, as Individuals, Appellants, v. VICTOR GOMEZ, Appellee
• Court: Arizona Supreme Court

202 P. 401

23 Ariz. 184

TOWN OF FLAGSTAFF, a Municipal Corporation, McLEAN & WALSH, a Partnership Composed of NEAL McLEAN and WILLIAM D. WALSH, and NEAL McLEAN and WILLIAM D. WALSH, as Individuals, Appellants, v. VICTOR GOMEZ, Appellee

Civil No. 1858

Supreme Court of Arizona

December 10, 1921

APPEAL from a judgment of the Superior Court of the County of Coconino. J. E. Jones, Judge. Appeal of Town of Flagstaff dismissed. Judgment against McLean & Walsh, a partnership and McLean and Walsh, as individuals, reversed and case remanded as to them.

Mr Francis D. Crable, for Appellant, Town of Flagstaff.

Mr Richard E. Sloan, Mr. C. R. Holton, Mr. Greig Scott, and Messrs. Ford & Bodkin, for Appellants McLean & Walsh, a Partnership, and McLean and Walsh, as Individuals.

Messrs Townsend, Stockton & Drake, for Appellee.

OPINION

McALISTER, J.

Victor Gomez brought this action as the father of Victoria Gomez, his fifteen months old child, against the town of Flagstaff, a municipal corporation, McLean & Walsh, a partnership composed of Neal McLean and William D. Walsh, and Neal McLean and William D. Walsh as individuals, and recovered judgment for $12,875. From this judgment and the order denying a motion for a new trial two separate notices of appeal were given, one by the town of Flagstaff and the other by the remaining defendants, but only the latter -- that is, McLean & Walsh, a partnership, and Neal McLean and William D. Walsh as individuals -- pursued their appeal by filing the required bond, and for the failure of the town of Flagstaff in this particular appellee moves the dismissal of its appeal.

Except in cases where the appellant is not required by law to furnish bond, an appeal is taken by giving notice thereof and filing a bond within the proper time, and it is deemed perfected, and the jurisdiction of this court attaches only after both of these requirements have been complied with. Paragraphs 1234, 1236, and 1237, Rev. Stats. 1913 (Civ. Code); Thomas v. Speese, 14 Ariz. 556, 132 P. 1137; Inspiration Consolidated Copper Co. v. Mendez, 19 Ariz. 151, 166 P. 278, 1183. The giving of the notice without pursuing the appeal to the extent of filing the bond when one is required confers on this court no jurisdiction to consider the merits, but only the power to enter an order of dismissal. Dean v. Territory, 13 Ariz. 152, 108 P. 476; Young Construction Co. v. Ruth Gold Mines Co. et al., 14 Ariz. 518, 131 P. 1045; Rothlisberger v. Hamblin, 15 Ariz. 274, 138 P. 14; Town of Yuma v. Winn, 17 Ariz. 92, 148 P. 286; Consolidated School District v. Enge, 17 Ariz. 559, 155 P. 301.

Appellant town of Flagstaff claims, however, that inasmuch as the amount of the bond on appeal was, pursuant to the statute, fixed by the clerk of the superior court at a sum that insures the repayment of appellee's costs in case of affirmance of his judgment, the giving by one of the appellants of the bond required fulfills the purpose of the statute, and renders useless the furnishing of another bond by the other defendant, guaranteeing the same costs. If it could be correctly contended that there is only one appeal, it is not apparent how compliance with the statute on appeal by one appellant could confer on this court jurisdiction to review the judgment against an appellant who has failed to comply therewith, even though they were codefendants, in view of the statutory requirement and its construction in the cases just cited. But the record discloses that separate appeals were taken; that is, that McLean & Walsh, a partnership, and Neal McLean and William D. Walsh, as individuals, perfected their appeal, and thereafter filed their abstract of record and briefs; that the town of Flagstaff attempted to appeal by giving notice thereof, paying the required filing fee and joining in the brief filed by the other appellants, but failed to give the bond and file an abstract of record, though in the joint briefs it makes use of the one filed by the other appellants. The cases were separately docketed in this court, and the appellee required to pay a filing fee in each. Hence it is evident that the bond given, which is an agreement to answer for the default of appellants McLean & Walsh, a partnership, and Neal McLean and William D. Walsh as individuals, does not secure the costs of appellee in the attempted appeal of the town of Flagstaff. Practically the same situation was before the court in the case of Turner v. Franklin, 10 Ariz. 188, 85 P. 1070. Judgment had been entered against the sheriff, Turner, and his surety, the United States Fidelity & Guaranty Company. The former gave notice of appeal, but filed no bond, while the latter petitioned for a writ of error and gave a supersedeas and cost bond. In disposing of the attempted appeal of Turner the court said:

"By reason of there being no bond filed by Turner or on his behalf, this court does not obtain any jurisdiction over him or his interests in the case. The determination of this question will therefore be had relative to the rights and interests of the guaranty company alone." Had the town of Flagstaff desired to unite with the other defendants in the appeal, it could have done so by joining in the undertaking. The rule is stated thus in 3 Corpus Juris, 1114:

"as a general rule, where two or more persons appeal or bring error severally from or to a judgment, order, or decree, they must each file a bond or undertaking for the amount required by the statute. But two or more defendants may unite in appealing or bringing error in a proper case, and perfect such appeal by joining in a single bond or undertaking. In such case all the appellants or plaintiffs in error must join in the bond or undertaking, and it must be so worded as to bind them, or each must give a bond or undertaking, in the absence of statutory provision to the contrary, and the wording of the condition must be such as to bind the sureties as to all."

It is contended further that it is questionable if the town of Flagstaff can execute a bond, inasmuch as the power is neither expressly given by its charter nor fairly implied from the terms thereof. Every municipal corporation in this state by the express terms of the general law under which it was organized "may sue and be sued, plead and be impleaded, defend or be defended, in all courts in all actions whatsoever." The power to do every act required to prosecute or defend an action to which it is a proper party in both the trial and appellate courts is necessarily implied in this language. The execution of a bond on appeal is merely an incident of its power to sue and be sued. If this were not true, a municipal corporation brought into the trial court to defend an action would be in this unenviable and unfair situation, powerless to appeal from an adverse judgment, whether properly or improperly entered, yet compelled at the instance of the adverse party, to uphold in the Supreme Court a judgment in its favor. The mere statement of the proposition is sufficient to show the fallacy of the contention that the town of Flagstaff cannot execute a bond on appeal. The motion to dismiss its appeal, therefore, for its failure in this respect is granted, and the merits of the questions presented by the appeal of the other appellants only will be determined.

The overruling of a general demurrer to the complaint is assigned as error, appellants contending that it should have been sustained because the complaint fails to state a cause of action for damages resulting from negligence in that it does not "charge a duty of defendants toward plaintiff or said decedent, the breach, and the resulting damages." A reading of the complaint discloses these facts: That the town of Flagstaff, a municipal corporation, entered into a contract in writing with McLean & Walsh, a partnership composed of Neal McLean and William D. Walsh, residents of Los Angeles, California, for the construction of a sewer system in said town of Flagstaff, and, among others, on a street known as O'Leary Avenue, a common thoroughfare used by the residents of said town and others; that said defendants, pursuant to said contract, began excavation on said O'Leary Avenue prior to July 1, 1919, and ceased said work on July 2, 1919, when it consisted of a ditch along the north side of said street more than six feet in depth and a large manhole of the same depth and more than four feet in width directly in front of and about forty feet from the home of Victor Gomez which said ditch and manhole were negligently left open and wholly unprotected by any means whatsoever from the second day of July, 1919, until about the twentieth day of August, 1919; that after the second day of July, 1919, and prior to the sixteenth day of August, 1919, heavy rains fell in the town of Flagstaff, and the said sewer ditch and manhole became filled with water, and so remained for more than thirty days prior to said last-mentioned date; that on said sixteenth day of August, 1919, between the hours of 5 and 6 P.M., Victoria Gomez, the fifteen months old daughter of plaintiff and Santa Gomez, a child of tender years, and without understanding and mental capacity to appreciate any danger in the sewer ditch or manhole aforesaid, though perfectly normal mentally and physically, and "while said sewer ditch and excavation was open, exposed, and without any protection and full of water, . . . fell in the said sewer ditch, excavation, or manhole, and was immediately drowned therein"; that the laws of the state and the town of Flagstaff required said town to keep its streets in good order and to protect properly any excavations made therein.

In view of these allegations it cannot be said that a duty from appellants toward appellee and his child, Victoria Gomez,...