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In re Sullivan's Estate

Supreme Court of Arizona

June 16, 1931

In the Matter of the Estate of J. W. SULLIVAN, Otherwise Known as JERRY W. SULLIVAN, Deceased. MARGARET H. SULLIVAN, Administratix With the Will Annexed of the Estate of DANIEL J. SULLIVAN, Deceased, Substituted for DANIEL J. SULLIVAN, Deceased, Appellant,
v.
JAMES A. CASHION, HOMER R. WOOD, ED WESTON, Each as Executor and Trustee of the Above Estate and Alleged Will of J. W. SULLIVAN, Otherwise Known as JERRY W. SULLIVAN, Deceased, HOMER R. WOOD, ED WESTON, MARY M. DUKE, MRS. JAMES A. CASHION, MRS. ARTHUR ATTRIDGE, and the Estate of C. P. HICKS, Deceased, MARGARET SULLIVAN and MATILDA RADZWESKI, as Legatees Under Said Purported Will, ED WESTON, and the Estate of C. P. HICKS, Deceased, as Devisees, and MARGARET SULLIVAN, Heir of Said Deceased, Appellees

APPEAL from a judgment of the Superior Court of the County of Yavapai. Joseph S. Jenckes, Judge. Motion to dismiss appeal granted.

Messrs. Cornick & Crable and Mr. Thomas A. Flynn, for Appellant.

Messrs. Baker & Whitney and Messrs. Norris, Flynn & Patterson, for Appellees.

OPINION

[38 Ariz. 388] LOCKWOOD, J.

 J. W. Sullivan, also known as Jerry W. Sullivan, died October 24, 1929, leaving a last will and testament which was duly admitted to probate December 7th, James A. Cashion, Homer R. Wood, and Ed Weston, hereinafter called appellees, being named as executors. Thereafter and on February 20, 1930, Daniel J. Sullivan filed in the proceedings in which the will was admitted to probate a document entitled "petition to revoke probate of will," which set up various reasons why the petitioner believed that the will was invalid, and prayed "that the order admitting to probate said purported will be set aside and revoked; that the letters testamentary heretofore issued to the said James A. Cashion, Homer [38 Ariz. 389] Wood and Ed Weston be revoked; that he be duly appointed administrator of said estate. . . . "

The matter was heard before the court sitting with a jury, and after the evidence was all in counsel for appellees moved for an instructed verdict in their favor on the ground that the evidence was not sufficient to sustain the allegations of the petition. The motion was granted and, appellees having moved for judgment in accordance with the verdict, the court rendered judgment in accordance with such verdict and motion on June 26, 1930. A motion for a new trial was duly made which was overruled on September 4th, and on September 15th notice of appeal was given "from that certain judgment rendered in the Superior Court of the County of Yavapai, State of Arizona, in the above entitled matter of the 26th day of June , 1930," and "from that certain Order made and entered in the above entitled matter in the above entitled court on 4th day of September, 1930, refusing a new trial. . . . "

Page 194

Daniel J. Sullivan, the contestant in said proceeding, died November 23, 1930. Margaret H. Sullivan, hereinafter called appellant, was thereafter appointed as administratrix with the will annexed of the estate of Daniel J. Sullivan, and on motion was substituted for the latter in this appeal, and filed an appeal bond March 3, 1931. This sufficiently states the facts for the consideration of the issues involved herein.

Appellees have filed a motion to dismiss the appeal on the ground of lack of jurisdiction in this court to entertain it. Ordinarily motions of this kind are determined without a formal opinion being filed, but in this case since a question of considerable importance to the general practice of law in Arizona is raised, we depart from our usual custom and discuss the reasons for our decision.

The right of appeal is peculiarly a creature of statute, and appeals can be taken only in the time and [38 Ariz. 390] manner provided by law. Levy v. Stofella, 14 Ariz. 262, 127 P. 725; Miami Copper Co. v. Strohl, 14 Ariz. 410, 130 P. 605; Navajo-Apache Bank & Trust Co. v. Desmont, 17 Ariz. 472, 154 P. 206. The provisions of the Revised Code of Arizona of 1928, regulating appeals and necessary for our consideration in this case, read as follows:

"3658. Judgments and orders reviewable by appeal only; by whom. A judgment or order in a civil action or proceeding may be reviewed by appeal as prescribed in this chapter, and not otherwise; such an appeal may be taken by any party aggrieved by such judgment or order."

"3659. Judgments and orders reviewable. an appeal may be taken to the supreme court from a superior court in the following cases:

"1. From a final judgment entered in an action or special proceeding commenced in a superior court. . . .

"3. From a judgment or order granting or refusing to grant, revoking or refusing to revoke, letters testamentary, or administration, or of guardianship; or admitting or refusing to admit a will to probate, or against or in favor of the validity of a will, or ...


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