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Fagerberg v. Denny

Supreme Court of Arizona

April 21, 1941

DIXON FAGERBERG, Appellant,
v.
W. C. DENNY, Appellee

APPEAL from a judgment of the Superior Court of the County of Yavapai. Henry C. Kelly, Judge. On motion to dismiss. Motion denied.

Mr. T. J. Byrne and Mr. Charles E. McDaniel, for Appellant.

Mr. E. S. Clark and Mr. Neil C. Clark, for Appellee, and Mr. William T. Elsing, Associate Counsel.

OPINION

Page 582

[57 Ariz. 189] LOCKWOOD, C.J.

Counsel for plaintiff herein has moved to dismiss the appeal on the ground that it was not taken in time. The motion is late but counsel justifiably excuses it by pointing out that until our decision in Southwestern Freight Lines, Ltd., et al., v. Norma Shafer et al., ante, p. 111, 111 P.2d 625, the trial bench and the bar were not certain as to just when, under the new rules, the time for taking an appeal began to run.

Upon an examination of the record it appears that on February 5, 1940, the trial judge made his written decision in Yuma county and transmitted the same to the clerk of the superior court of Yavapai county, together with the following order:

"Wherefore, by reason of the law and the premises it is now ordered that upon the coming in of a written form of judgment, and subject to its service, approval, signing and filing, judgment may be entered for the [57 Ariz. 190] plaintiff and against the defendant in the sum of $58,240.21, and costs.

"Dated this 5th day of February, 1940.

"HENRY C. KELLY,

"Judge sitting in said cause."

Which judgment and order was filed on February 7, 1940, and the attorneys for the respective parties notified of said filing. On February 19, 1940, the clerk's docket shows the following record:

On Entering

"Mo. Day Year

Book

#p

Page

Docket No.

From Whom

Judgment

2/19/40

25

537

14384

W. C. Denny

10.00


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