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Mercado v. Superior Court of Pima County

Supreme Court of Arizona

March 28, 1938

RAYMOND MERCADO and CORA MERCADO, His Wife, Petitioners,
v.
SUPERIOR COURT OF PIMA COUNTY, ARIZONA, and HON. WM. G. HALL, Judge, Respondents

Original proceeding in Certiorari. Writ quashed.

Mr. Edward Aboud, for Petitioners.

Messrs. Hummel, Hummel & Wyatt, for Respondents.

OPINION

[51 Ariz. 437] LOCKWOOD, J.

Raymond Mercado and Cora Mercado, his wife, hereinafter called petitioners, made application [51 Ariz. 438] to this court for a writ of certiorari, directed to the superior court of Pima county, and the Honorable WM. G. HALL, judge thereof. The allegations of their petition in support of the application are as follows: On June 18, 1937, Wert C. Fenter and Floss Fenter, his wife, hereinafter called plaintiffs, sued petitioners in the justice court of Tucson precinct, Pima county, for the sum of $48 alleged to be rent due from petitioners to plaintiffs. The case came on for trial on the 27th day of October, and judgment was rendered by the justice of the peace in favor of petitioners. On the next day, October 28th, plaintiffs gave written notice of appeal to the superior court of Pima county, and gave to the justice of the peace a check in the sum of $20, whereupon the record was certified and transmitted by the justice to the superior court. Thereafter petitioners moved to dismiss the appeal to the superior court for want of jurisdiction, in that the appeal was

Page 811

not duly perfected because no bond on appeal had been filed by the plaintiffs, as required by sections 1465, 4204, Revised Code 1928. The court heard the motion to dismiss the appeal and denied it, giving petitioners ten days to answer the amended complaint filed by the plaintiffs in the superior court, whereupon petitioners, believing that the superior court, for the reasons aforesaid, was without jurisdiction to hear the appeal and that there was no other remedy available to them, have asked for a writ of certiorari from this court, based upon the above allegations. The writ was issued, and the record of the proceedings in both the justice and the superior courts were sent up. The respondents moved that the writ be quashed, and the matter is before us on the petition, the return and the motion to quash.

When a writ of certiorari is before this court, we are bound by the record sent up from the tribunal whose action we are reviewing as to what actually [51 Ariz. 439] occurred therein and may not consider any extraneous matters, such as allegations in the petition or the reply. The record imports absolute verity and is conclusive upon the court. McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762; 11 C.J. 199, and cases cited. And when the return is made, the court must proceed on the assumption that the entire record of the proceeding challenged is before it, rejecting all affidavits or other proof introduced to impeach or support the record. State v. Thorne, 112 Wis. 81, 87 N.W. 797, 55 L.R.A. 956. If the parties are of the opinion that the record, as certified, does not show the true situation, the proper course is to obtain an amended return, and not to impeach it by affidavits or other proof. State v. Thorne, supra.

The record certified to us shows that the plaintiffs filed a complaint against petitioners in the justice court of Tucson precinct, Pima county, seeking to recover the sum of $48 on account of rent. On October 27th the case came on for trial before the justice of the peace sitting without a jury, whereupon oral judgment was rendered in favor of defendants; no formal written judgment being filed. On October 28th the attorneys for the plaintiffs gave written notice of appeal to the superior court, and a cash bond on appeal was filed. The amount of the bond and its terms are not shown. The minutes of the superior court show a motion to dismiss the appeal, an argument, and a denial of the motion, and an order allowing ten days' time for defendants to answer plaintiffs' second amended complaint. The case was thereafter passed indefinitely, presumably to await a determination of the present proceeding in this court.

The questions before us are: (a) What is necessary to perfect an appeal from the justice court to the superior court in a case of the nature set forth herein; and (b) have the requisites for such an appeal been [51 Ariz. 440] complied with? The sections of the statute governing these questions are 4204, 1465, 342, and 4208, Revised Code 1928. These sections read as follows:

"§ 4204. Notice in open court or in writing; bond. The party appealing shall give notice thereof in open court at the time the judgment is rendered, or by serving a written notice thereof upon the adverse party, within five days thereafter, and shall within ten days from the date of the judgment, file with the justice a bond to be approved by the justice, in double the amount of the judgment, payable to the appellee, conditioned that the appellant shall prosecute his appeal to effect, and shall satisfy the judgment which may be rendered against him on such appeal."

"§ 1465. Deposit for costs in justice court. Each justice of the peace may require the plaintiff in a civil action, at the time of the commencement of the action, to deposit not exceeding ten dollars to be applied toward the payment of the costs incurred in such action; and in like manner may require the defendant at the time of filing his answer or entering his appearance to make a deposit not exceeding five dollars, to be applied to the fees and costs incurred by the defendant; provided, however, that in all civil actions, other than on an assigned claim, brought for recovery of money only, where the amount in controversy, exclusive of interest and costs, does not exceed the sum of fifty dollars, no fees whatever shall be required, except one dollar to be paid by the plaintiff when instituting action, and one dollar to be paid by the defendant when entering appearance, the same to include all constable's or sheriff's fees; but in all actions included within the terms of this proviso where a right of appeal to the superior court exists, and a party is desirous of taking such an appeal, no appeal shall be taken until such party has either paid into court the sum of twenty dollars as and for an attorney's fee to the adverse party, or has secured the payment of the same by a good and sufficient bond with two

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sureties, to be approved by the justice of the peace in double the amount of the judgment, costs and attorney's fees, payable to the adverse party and conditioned that the appellant shall prosecute his appeal to effect, and shall [51 Ariz. 441] pay and satisfy the judgment which may be ...


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