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Lount v. Strouss

Supreme Court of Arizona

October 8, 1945

CARRIE A. LOUNT, a Widow, Appellant,
v.
CHARLES L. STROUSS and LUCILLE STROUSS, Husband and Wife, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge.

Appeal dismissed.

Mrs. Carrie A. Lount, In Propria Persona.

Messrs. Snell, Strouss & Wilmer, for Appellees.

LaPrade, J. Stanford, C. J., and Morgan, J., concur.

OPINION

LaPrade, J.

[63 Ariz. 324] The immediate disposition of this appeal is called for by the motion of the appellees to dismiss the appeal on the ground that appellant has failed to file a cost bond on appeal as required by Sec. 21-1804, Arizona Code Annotated 1939. This motion was noticed for oral hearing on July 14, 1945. Appellees appeared to present and urge this motion. The appellant failed to appear and has made no response thereto.

The appellees in the lower court secured judgment against appellant quieting title in them to certain real estate. On August 7, 1944, appellant gave written notice of appeal, and filed an affidavit of inability to give cost bond as authorized by Sec. 21-1805. Within five days, to-wit, on August 11th, appellees filed and served a demand requiring proof of the facts stated in the affidavit of inability to give cost bond. On or about August 12th, the Honorable Howard C. Speakman, one of the judges presiding in the Superior Court of Maricopa County, Arizona, endorsed his approval on this affidavit authorizing the appellant to appeal without [63 Ariz. 325] giving a cost bond on appeal. No proof was made or hearing had of the facts stated in the affidavit of inability to give bond. The exact date on which Judge Speakman endorsed his approval does not appear on his order of approval. Apparently it was on the 12th day of August as more specifically appears from the proceedings thereafter had.

On the 21st day of November, 1944, Judge Speakman signed the following written order, which was on that day filed in the records of the case:

Page 431

"On or about August 12, 1944, Hattie L. Mosher presented for approval to the undersigned, Howard C. Speakman, Judge of the Superior Court of Maricopa County, Arizona, Division No. 3, the Affidavit of Inability to Give Bond on Appeal in Cause No. 52870 executed by Carrie A. Lount on the 5th day of August, 1944, and filed with the Clerk of the Superior Court of Maricopa County on the 7th day of August, 1944. On August 11, 1944, a Demand for Proof of the facts stated in said Affidavit of Inability to Give Bond on Appeal was filed. The fact that said Demand for Proof had been filed, or that the time for filing same had not expired, was concealed from and not made known to the undersigned, and no proof was made or hearing had on the facts stated in said affidavit of Inability to Give Bond on Appeal; that the undersigned was without knowledge that the time had not expired for filing a demand for proof, or that a demand for proof had been filed, when the undersigned signed the order approving the affidavit of Inability to Give Bond and allowing Carrie A. Lount to appeal without bond, and said order was procured by concealment from and fraud on this court.

"The order signed on or about August 12, 1944, approving the Affidavit of Inability to Give Bond on Appeal executed by Carrie A. Lount August 5, 1944, and allowing Carrie A. Lount to appeal without bond is vacated and set aside."

We have repeatedly held that the "right of appeal is peculiarly a creature of statute, and appeals can be taken only in the time and manner provided by [63 Ariz. 326] law." In re Sullivan's Estate, 38 Ariz. 387, 300 P. 193, 194; Smith v. Trott, 36 Ariz. 166, 283 P. 726. In the case of Town of Flagstaff v. Gomez, 23 Ariz. 184, 202 P. 401, 403, 23 A. L. R. 661, we said:

"Except in cases where the appellant is not required by law to furnish bond, an appeal is taken by giving notice thereof and filing a bond within the proper time, and it is deemed perfected, and the jurisdiction of this court attaches only after both of these requirements have been complied with. Paragraphs 1234, 1236, and 1237, Revised Statutes 1913 (Civ. Code); Thomas v. Speese, 14 Ariz. 556, 132 P. 1137; Inspiration Consolidated Copper Co. v. Mendez, 19 Ariz. 151, 166 P. 278, 1183. The giving of the notice without pursuing the appeal to the extent of filing the bond when one is required confers on this court no jurisdiction to consider the merits, but only the power to enter an order of dismissal. Dean v. Territory, 13 Ariz. 152, 108 P. 476; Young Construction Co. v. Ruth Gold Mines ...


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