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Cahn v. Schmitz

Supreme Court of Arizona

January 13, 1941

CHARLES CAHN, Appellant,
MARTHA SCHMITZ, Guardian Ad Litem for WILLIAM SCHMITZ, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Messrs. Townsend, Jenckes & Wildman, for Appellant.

Mr. Richard G. Johnson, for Appellee.


Page 1007

[56 Ariz. 470] ROSS, J.

The plaintiff William Schmitz (a minor), through his guardian ad litem Martha Schmitz, brought an action against Charles Cahn and others for damages for personal injuries he alleges he sustained in their employment. What disposition was made of the action as to "other" defendants is immaterial. On January 6, 1933, the case as to Cahn was tried before the court without a jury. At the conclusion of the trial, the court caused the following minute entry to be made:

"... it is ordered that upon the presentation of a formal, written judgment by the plaintiff, and its approval and signing by the court, and filing thereof, judgment will be rendered in favor of the plaintiff and against the defendant in the sum of $5,000.00."

Nothing further was done until January 31, 1940, when plaintiff William Schmitz made a motion for the entry of a written judgment in accordance with the court's order of January 6, 1933. This motion and the objections thereto came on for hearing on February 21, 1940, at which hearing both parties were represented by counsel. At the hearing it was disclosed that plaintiff's trial attorney was dead; that plaintiff had thought all the time that he had a good judgment; that he had been so assured by his attorney. It also appears that defendant Cahn at the time of the trial was in the process of liquidation in bankruptcy. It was shown that plaintiff became 21 years old on January [56 Ariz. 471] 6, 1933, the date judgment was ordered in his favor. Upon the showing made at the hearing, the court granted plaintiff's motion for the entry of a formal, written judgment on March 11, 1940.

The defendant has appealed from the court's order denying his motion to dismiss the cause for want of jurisdiction, overruling his objections to the motion for judgment and the order granting such motion, and from the judgment.

The first point he raises by his assignments is that the court lost jurisdiction to enter judgment because the provisions of Rule VII, Uniform Rules for the Superior Court, were not followed. This rule requires the party in whose favor the court decides to prepare and present to the judge a proposed form of judgment within five days thereafter, and to serve a copy thereof on the opposite party, and provides that "no judgment or decree shall be rendered or signed by the judge before the expiration of said five days." (Italics ours.) In this rule there is no prohibition against rendering or signing a judgment or decree after the expiration of said five days. Indeed, an examination of the cases shows that this court has insisted that Rule VII should be followed and, where it was not, has reversed and remanded in order that the necessary steps as to serving proposed judgment and filing same should be taken. Chiricahua Ranches Co. v. State, 44 Ariz. 559, 39 P.2d 640; Harrington v. White, 48 Ariz. 291, 61 P.2d 392; American Surety Co. v. Mosher, 48 Ariz. 552, 64 P.2d 1025; Ross v. White, 46 Ariz. 304, 50 P.2d 12; Ferguson v. Goff, 46 Ariz. 260, 50 P.2d 20. Neither Rule VII nor the decisions of this court makes jurisdictional the failure to file formal, written judgment within five days after the court's decision. On the contrary, the only effect of such failure is to require the party entitled [56 Ariz. 472] to judgment to go back and comply with such rule.

It is next claimed that it was error to enter formal, written judgment on March 11, 1940, because plaintiff had not prosecuted his suit to judgment within two years after his cause of action accrued, or with diligence. This contention is based on section 29-202, Arizona Code of 1939, which provides:

"There shall be commenced and prosecuted within two (2) years after the cause of action shall have accrued, and not afterward, the following actions, for:

"1. Injuries done to the person of another;..."

It is undisputed the action was brought within two years after plaintiff was injured and it is also a fact that the case was, within a reasonable time, brought to trial and the decision in favor of the plaintiff promptly rendered. The only omission was the failure to have formal, written judgment entered. The case was prosecuted to this point. All that was necessary thereafter were formal acts required by Rule VII, not in any way affecting the merits of the case. The defendant had been granted the privilege of defending himself in a fair trial against the charge of negligently injuring plaintiff and had lost. The decision on the facts ...

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