SLIGH et al.
WATSON et ux
Appeal from Superior Court, Pima County; Lee Garrett, Judge.
Motion to dismiss appeal denied.
Stanley W. Kimble, of Tucson, for appellants.
Bob Barber and Franklin E. Vaughan, both of Tucson, for appellees.
La Prade, Justice. Stanford, C. J., and Udall, J., concur.
La Prade, Justice.
[67 Ariz. 96] Plaintiffs below (appellants here) instituted their action for breach of contract and prayed for money damages in the sum of $ 1,000. Defendants (appellees) denied that they were indebted to plaintiffs on account of the matters complained of in the complaint, and prayed that plaintiffs take nothing thereby.
Both parties moved for summary judgment on the pleadings and on the affidavits filed in opposition to defendants' motion, which were presented and considered by the court, whereupon the court granted defendants' motion and decreed that they should have their costs. In view of the pleadings and proceedings had the granting of defendants' motion for summary judgment and costs was equivalent to a judgment that there be no recovery. Rules Civ.Proc., Rule 58, section 21-1230, A.C.A.1939. This order for summary judgment and costs (that there be no recovery) was made on September 2, 1947, and entered by the clerk on the same day in the civil docket, as provided in Rule 79(a), section 21-1910, A.C.A.1939, and in the judgment docket, section 62-101, A.C.A.1939.
The clerk entered this notation in the civil docket without requiring defendants simultaneously to pay the fee in cash as required by section 34-110, A.C.A.1939. Defendants actually paid the fee in cash on September 26 (24 days after entry of judgment). Appellants filed their notice of appeal to this court on November 22, purporting to appeal from the judgment of the superior court entered September 26 (being the day the judgment fee was paid in cash).
The matter before us comes here on a motion to dismiss the appeal upon the ground that notice of appeal was not filed within the time prescribed by Rule 72, section 21-1801, which requires that the notice must be filed within sixty days from entry of the judgment.
Appellants contend that judgment was entered on September 26, citing Southwestern Freight Lines v. Shafer, 57 Ariz. 111, 111 P.2d 625, and Fagerberg v. Denny, 57 Ariz. 188, 112 P.2d 581: while the movants insist that the clerk's notation in the civil docket of their motion for summary judgment constituted the entry of the judgment within the meaning of Rule 58, section 21-1230, which contention, if correct, means that this court is without jurisdiction other than to dismiss the appeal.
[67 Ariz. 97] The uncontroverted affidavit of the clerk of the superior court of Pima County, offered in support of the motion to dismiss, furnishes the reason for the clerk's act in entering the judgment and for the delay in payment by cash of the judgment fee at the time of its entry. The apropos parts of the affidavit read as follows:
"Affiant further states that approximately One Hundred Thirty (130) lawyers practice in said Superior Court of Pima County; that it has been the practice in that Court for many years last past to charge the accounts of lawyers of reputable credit standing with the Court costs due from their clients each month and to ...