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Gotthelf v. Fickett

Supreme Court of Arizona

January 12, 1931

ERNESTYNE GOTTHELF, Petitioner,
v.
FRED W. FICKETT, as Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent

Page 838

[Copyrighted Material Omitted]

Page 839

On motion for rehearing of order making permanent alterative writ on original petition for Writ of Mandamus. For original opinion, see ante, p. 322, 294 P. 837.

Messrs. Conner & Jones and Messrs. Richey & Richey, Attorneys for Petitioner.

Mr. John B. Wright and Mr. William R. Misbaugh, Attorneys for Respondent.

Mr. George R. Darnell, Amicus Curiae.

OPINION

Page 840

[37 Ariz. 414] LOCKWOOD, J.

Petitioner and respondent have each filed a motion for a rehearing in this case. Ordinarily we do not write opinions on such motions, but, since respondent has suggested our original opinion is in some points confusing to the bar of the state on an important point of practice, we depart from our usual custom.

The first point raised by respondent is that mandamus does not lie, on the ground that the supersedeas [37 Ariz. 415] bond was presented for approval before the appeal was perfected. The notice of appeal was given on June 10th, 1930, and on June 14th petitioner applied for an order fixing the amount of the supersedeas bond, and on July 9th the bond was presented to the court for its approval. Apparently it is the theory of respondent that it was necessary for petitioner, not only to give the notice of appeal, but to file the statutory bond on appeal before a supersedeas bond was presented.

Section 3667, Revised Code 1928, provides that "the appeal is perfected when the notice is given and the bond is filed." Section 3668, referring to a supersedeas of a money judgment, provides that a supersedeas bond may be given "instead of the appeal bond or affidavit, or in addition thereto." While section 3669, referring to a supersedeas of any other than a money judgment, does not expressly state that the supersedeas bond may be given instead of the appeal bond, we are of the opinion that, when all of the sections are read together, this is undoubtedly the meaning, and it has always been the practice in this court to allow an appeal upon a supersedeas bond without the necessity of giving an appeal bond in addition. The condition of the appeal bond in section 3669, while not in specific words, including the costs covered by an appeal bond, does so in legal effect. It is not necessary that an appeal bond be given as a condition precedent to the application for a supersedeas.

The second point is that this court, in holding that the superior court, in the absence of a supersedeas bond, would have jurisdiction to change the custody of the minor child of petitioner, has in effect reversed its decision in the cases of Navajo Realty Co. v. County National Bank & Trust Co., 31 Ariz. 128, 250 P. 885, 887, and Sam v. State, 33 Ariz. 421, 265 P. 622, 625. In the first-named case we said: [37 Ariz. 416]

"When an appeal to this court has been perfected, the trial court loses all jurisdiction of each and every matter connected with the case, except in furtherance of the appeal, unless it is ...


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