Ulan v. Kay

Citation427 P.2d 376,5 Ariz.App. 395
Decision Date28 April 1967
Docket NumberNo. 2,CA-CIV,2
PartiesLeon ULAN and Sylvia Ulan, husband and wife, Appellants, v. Milford KAY and Edna T. Kay, husband and wife, Sidney Katz and Shirley Katz, husband and wife, and Ferdinand Reese and Dorothy Reese, husband and wife, Appellees. 396.
CourtArizona Court of Appeals

William Messing, Tucson, for appellants.

Johnson, Darrow, D'Antonio, Hayes & Morales, Tucson, for appellees Kay.

Silver, Silver, Ettinger & Karp, Tucson, for appellees Katz and Reese.

PER CURIAM.

The appellants were named as defendants in a suit commenced in superior court, Pima County, to recover damages for fraud. They subsequently filed a third-party complaint against the appellees. The appellees filed their respective motions for summary judgment on the ground that the claim set forth in the third-party complaint was res judicata. The motions were granted and on December 27, 1966, judgment was entered in favor of appellees Kay, and on January 10, 1967, judgment was entered in favor of appellees Katz and Reese. This appeal was timely prosecuted from both judgments.

Although neither party has raised it, we question our jurisdiction to entertain this appeal. With certain exceptions not pertinent here, our sole power is to hear appeals 'from a final judgment.' A.R.S. § 12--2101, as amended. This action involves multiple claims, and when the trial court adjudicated the third-party claim and left the original claim pending, the action became controlled by Rule 54(b), as amended, Rules of Civil Procedure, 16 A.R.S., which provides:

'When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.'

Nowhere in the summary 'judgments' of the trial court is there any 'express determination that there is no just reason for delay' as required by this rule. The very language of the rule negates 'finalit...

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3 cases
  • Pulaski v. Perkins
    • United States
    • Court of Appeals of Arizona
    • 2 October 1980
    ......2 In Ulan v. Kay, 5 Ariz.App. 395, 396 n. 1, 427 P.2d 376, 377 n.1 (1967). Division Two indicated its belief that the Eaton Fruit procedure did not apply in rule 54(b)--deficient cases. 3 Certain kinds of decisions of the superior court are appealable without a 54(b) determination even though they are not ......
  • Estate of Kerr, Matter of, 1
    • United States
    • Court of Appeals of Arizona
    • 9 August 1983
    ...... See Boone v. Estate of Nelson, 264 N.W.2d 881 (N.D.1978). The judgment was in the nature of an interlocutory order, not a final judgment. Ulan v. Kay, 5 Ariz.App. 395, 427 P.2d 376 (1967). We conclude, therefore, that the summary judgment entered by the superior court was not a final judgment under A.R.S. § 12-2101(J). As we have already observed, the jurisdiction of the Court of Appeals, with certain exceptions, is limited to appeals ......
  • Justice Court of Tempe Precinct, Maricopa County v. Keswick
    • United States
    • Court of Appeals of Arizona
    • 4 May 1967
    ...of the divorce decree, for he has made an order which, in effect, modifies that decree, but without reference thereto. This, it would [5 Ariz.App. 395] Page 376 seem, he should not do, for defendant is now subject to two orders of the same court; one calling for the payment of a certain sum......

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