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Burney v. Lee

Supreme Court of Arizona

September 28, 1942

CARRIE BURNEY, Appellant,
v.
JOHN C. LEE, et ux., Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. On motion to dismiss appeal. Motion granted.

Mr. V. L. Hash, for Appellant.

Mr. John W. Ray, and Messrs, Cox & Cox, for Appellees.

OPINION

Page 309

[59 Ariz. 361] LOCKWOOD, C.J.

John C. Lee and wife, plaintiffs, brought suit in the superior court of Maricopa county against Carrie Burney, defendant. Judgment was rendered in favor of plaintiffs, and defendant appealed to this court. Plaintiffs moved the court to dismiss the appeal on the ground that it was not taken within sixty days from the entry of judgment. Defendant resists the motion on the ground that she had six months within which to take the appeal.

The question is whether the appeal was timely. If it was, the motion should be denied. If it was not, it should be granted, for the time permitted to take appeals may not be extended. Sec. 21-327, Arizona Code 1939. Section 3661, Revised Code 1928, reads as follows:

"Time for taking appeal. An appeal may be taken from a final judgment of the superior court in a civil action, or special proceeding commenced in such court, [59 Ariz. 362] at any time within six months after the rendition of such judgment, and from any other judgment or order at any time within sixty days after the making of such order."

The Supreme Court of Arizona in 1939 adopted the following rule, which was carried forward into the code of 1939 as section 21-1801:

"Appeal to the Supreme Court. -- When an appeal is permitted by law to the Supreme Court, it shall be taken by notice filed with the superior court within sixty (60) days from the entry of the judgment or order appealed from, as provided by these rules."

It is contended by plaintiffs that this rule superseded section 3661, supra. It is insisted by defendant that the rule did not and could not supersede the statute above set forth and that the time allowed for appeal is that set forth in the statute, and not that provided in the rule. The real question raised is whether the supreme court had the right to adopt the rule in question, notwithstanding the statute. If it did, the appeal must be dismissed. If it did not, the motion should be denied. The question is of such great importance to the practice of law in Arizona, involving as it does the question of the right to make rules of pleading, practice and procedure, that we think it best to depart from our ordinary custom of determining motions without written opinions, and to examine the question of the rule-making power de novo.

Article 3 of the Constitution of Arizona reads as follows:

"Distribution of Powers. The powers of the government of the state of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others."

[59 Ariz. 363] Article 6, section 1, is in this language:

"(Courts.) -- The judicial power of the state shall be vested in a Supreme Court, superior courts, justices of the peace, and such courts inferior to the superior ...


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