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In re Estate & Guardianship of Sorrells

Supreme Court of Arizona

September 29, 1941


APPEAL from a judgment of the Superior Court of the County of Santa Cruz. E. W. McFarland, Judge. Judgmant affirmed in part and reversed in part and remanded with instructions.

Mr. Duane Bird and Mr. Thomas L. Hall, for Appellant.

Messrs. Duffy & Robins, Messrs. Darnell, Pattee & Robertson and Messrs. Conner & Jones, for Appellee.


Page 97

[58 Ariz. 28] LOCKWOOD, C.J.

This is an appeal by Joseph Ahira Sorrells, hereinafter called the minor, from certain parts of an order and judgment settling

Page 98

the final account of Laura S. Bergier, hereinafter called the guardian, and a cross-appeal by the guardian from certain other portions of said order.

A motion to dismiss the appeal was filed by the guardian on the ground that it was not taken within the sixty days permitted by the statute, sec. 21-1801, Arizona Code, 1939. The order appealed from was made on March 11, 1939, and a motion for new trial [58 Ariz. 29] was filed by the minor, which was overruled on May 1, and notice of appeal was given on June 29. It thus appears that the notice of appeal was given within sixty days after the overruling of the motion for new trial, but much more than sixty days after the making of the order appealed from. Section 3659, Revised Code 1928 (sec. 21-1702, Ariz. Code 1939), under which the appeal was taken, provides in paragraph 3 that appeals may be taken "From a judgment or order... settling an account of an... guardian..." The notice of appeal is from "the following parts and portions of that certain order and judgment rendered in said court in the above entitled cause on the 11th day of March, 1939," and the order and judgment referred to in the notice is clearly an order settling the final account of the guardian.

It is the contention of the guardian that the rule laid down by this court that the time to appeal from a judgment in a civil action does not begin to run until after a motion for new trial is disposed of does not apply to appeals from probate orders of the kind involved herein.

This court has apparently never passed on the precise point raised, but after a careful review of our statutes and the authorities from other states, we are of the opinion that a motion for a new trial may be made in probate proceedings like this, and that the time for appeal under such circumstances is governed by the same rule as an appeal in ordinary civil matters. Section 4171, Revised Code 1928 (sec. 38-2007, Ariz. Code 1939). The motion to dismiss the appeal is, therefore, denied.

The record in the case is extremely voluminous, but the material facts bearing upon the issues which must be decided are in little conflict, except as to one important matter which we shall point out and discuss at the proper time. These facts may be stated as follows: [58 Ariz. 30] Mrs. A. B. Sorrells had three sons, commonly known as Bert, Roy and Ray, and three daughter, one of whom was Mrs. Laura S. Bergier, the guardian in the present proceeding. The three brothers were partners in the cettle business, under the name of Sorrells Brothers, Bert owning a half interest therein, the other half being owned by Roy and Ray. Bert died in 1918, leaving a daughter and three sons, Joseph Ahira, the youngest, being the minor named in this action. The estate of Bert Sorrells was duly probated, and on January 7, 1920, Otto H. Herold was appointed pointed guardian of the estate of the four minor children.

On November 1, 1920, the superior court of Santa Cruz County, which had jurisdiction at all times of the probate proceedings, authorized Herold, as guardian, to invest $21,500 of the estate of the wards in the purchase from Roy and Ray Sorrells, the uncles of the minors, of forty-five hundred acres of land which was part of a larger area of grazing land, and was subject to a mortgage of about $129,000. At the time this land was purchased under the order of the court, Roy and Ray, and their respective wives, executed an agreement with the guardian which provided that they would pay and discharge the mortgage when it became due, and in case of default would pay to the guardian the full sum of $21,500, as aforesaid, together with any costs incurred in enforcing the agreement. It is agreed that this $21,500 was part of the estate of the three sons of Bert Sorrells, the estate of his daughter not being involved in this purchase in any manner. About three years later the mortgage in question was foreclosed, and the minors thus lost the land for which their guardian had paid the $21,500. In the meantime Ray Sorrells had died, and Herold filed suit against Roy and his wife, and against Ray's widow both individually and as administratrix of her [58 Ariz. 31] husband's estate, upon the agreement of reimbursement above referred to. All of the cattle belonging to Roy and Ray were also subject to a mortgage held by the First National Bank of Nogales, and this was foreclosed about the same time, Ray and Roy thus losing all of their grazing lands and cattle, which were their principal, if not only, assets. After this debacle there was remaining, among other things, as assets of Joe Sorrells' estate, about one hundred head of cattle. Herold petitioned the court for authority to sell the cattle, and published the usual order to show cause. At this time the cattle market was in a very depressed condition and the cash sale value of these cattle very low. Mrs. Bergier, the present guardian,

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attempted to save the cattle from sale and an arrangement was finally made with Mrs. A. B. Sorrells, the grandmother, and Ray Sorrells' widow, Ozella, to handle the cattle of the minors under ...

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