Original proceeding in Certiorari. Alternative writ made permanent.
Mr. D. V. Mulhern, and Mr. B. H. Gibbs, for Petitioner.
Messrs. Hummel, Hummel & Wyatt, for Respondent.
[59 Ariz. 315] LOCKWOOD, C.J.
This matter comes before us on a petition for a writ of certiorari to review the proceedings of the Superior court of Pinal county, wherein Ethel Ferguson, petitioner, was adjudged guilty of contempt in the case of Seldon D. Goff and Flora B. Goff, Plaintiffs, v. Ethel Ferguson, Defendant, Case No. 5252 in said superior court.
The factual situation upon which the proceeding is founded, as shown by the records of this court and of the superior court of Pinal county, may be stated as follows: On May 9, 1932, Seldon D. Goff and Flora B. Goff, plaintiffs, filed a complaint against Ethel Ferguson, defendant, seeking to quiet title to certain premises in Pinal county. After various pleadings and proceedings, on January 5, 1935, the minutes of the trial court show the following order:
[59 Ariz. 316] "It Is Ordered that said motion to strike be and the same hereby is sustained; the defendant's
third amended answer be and the same hereby is stricken; and that plaintiffs' motion for judgment be and hereby is granted."
No formal written judgment was filed until February 11, 1935, when the trial court, over the objections of defendant, did sign and file a formal written judgment. However, no minute entry showing a rendition of judgment on February 11 was made. Thereafter defendant Ferguson appealed to this court. On October 14, 1935 this court rendered its judgment on the motion to dismiss the appeal. (Ferguson v. Goff, 46 Ariz. 260, 50 P.2d 20), in the following language:
"... It appearing in the record of the present case that no valid judgment has ever been rendered therein, the appeal was prematurely taken, and the motion to dismiss is granted."
A motion for rehearing was filed on October 28, and denied on November 23, and the mandate was duly issued and sent to the superior court of Pinal county. That court on December 6, 1935, and after the judgment of this court above referred to had become final, made the following order:
"It appearing that the minutes of this Court do not disclose the hearing and proceedings in this cause had and done on the 11th day of February, 1935, the following minute nunc pro tunc as of February 11, 1935, is hereby ordered made by the Court sua sponte, to wit:
"'This cause came on regularly this day for hearing on the entry of judgment and defendant's objection thereto, duly filed; and plaintiffs, by counsel, having waived appearance either in person or by counsel at this hearing, and defendant appearing by H. J. Valentine, Esq., her attorney; and the said H. J. Valentine, Esq., having filed herein his objection to the attorney fee incorporated in the proposed judgment submitted to the Court by plaintiffs, but the said H. J. Valentine, [59 Ariz. 317] Esq., agreeing in open court that, if the Court finds plaintiffs entitled to recover attorney fees, the Court may fix the same in its discretion without the introduction of any evidence whatever; and the Court having considered the matters now before the Court, and the same having been submitted to the Court for decision, and now being fully advised, Finds that plaintiff is entitled to recover an attorney fee as prayed for in his complaint, and now at this time hereby fixes the amount thereof at the sum of $150.00, for which plaintiff is ...