OLD PUEBLO TRANSIT CO.
CORPORATION COMMISSION OF ARIZONA et al
Rehearing Denied November 27, 1951.
Motion granted and appeal dismissed.
Knapp, Boyle, Bilby & Thompson, and Arthur Henderson, all of Tucson, for appellant.
Fred O. Wilson, Atty. Gen., Alexander B. Baker and Calvin H. Udall, Asst. Attys. Gen., for appellee Corp. Commission of Arizona.
Jerman & Jerman and Richard R. Greenfield, of Phoenix, A. Y. Holesapple, of Tucson, for appellee Tucson Rapid Transit Co.
La Prade, Justice. Udall, C. J., and Stanford and Phelps, JJ., concur. De Concini, Justice (dissenting).
La Prade, Justice.
[73 Ariz. 33] The attempted appeal in this case is being disposed of on appellee's motion to dismiss the appeal for want of jurisdiction upon the ground that the appeal was not perfected within the rule time allowed for taking an appeal. The judgment appealed from set aside an order of the Arizona Corporation Commission granting to appellant, Old Pueblo Transit Company, a certificate of necessity and convenience to operate a bus line over certain territory in the city of Tucson. Judgment was entered and filed on November 13, 1950. Being dissatisfied with this judgment, appellant has attempted to appeal therefrom. The provisions of the rule governing an appeal in this situation is section 69-249, A.C.A.1939, which, in part, provides as follows: "Either party to said action, or the attorney-general on behalf of the state, within thirty (30) days after the rendition of the judgment of the superior court, may appeal to the Supreme Court. * * *" Notice of appeal was filed with the clerk of the superior court on January 23, 1951, 71 days after entry of judgment. The appellant, in resisting the motion to dismiss, shows:
1. That by Rule 77(g), Rules of Civil Procedure for the Superior Courts of Arizona, section 21-1908, A.C.A.1939, immediately upon the entry of an order or judgment, the clerk of the superior court shall serve a notice of the entry by mail upon every party affected thereby, who is not in default for failure to appear and shall make a note in the docket of the mailing. Appellant in the court below, on January 2, 1951, made a motion to have the judgment vacated and re-entered upon the ground that although the judgment was entered on November 13, 1950, the clerk had not served notice by mail of the entry of the judgment and had made no note in the docket of the fact of such mailing. This motion was denied. Prior to November 13th, counsel for appellant had made inquiry of the clerk by mail to determine whether the judgment had [73 Ariz. 34] been filed. On November 13th, the clerk advised him by mail that it had not been filed. Presumably the judgment was filed later in the day and after the clerk had answered the letter of inquiry. In any event, counsel for appellant had actual notice of the entry of the judgment on November 24th, having been in the clerk's office that day and examined the records.
2. That the period within which an appeal may be taken is not 30 days as provided for in section 69-249, supra, but, in fact, is 60 days as provided in Rule 72, section 21-1801. This rule, in part, provides as follows: "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. * * *" Appellant argues that the 30-day appeal period provided for in section 69-249 is purely procedural; that by the provisions of Laws 1939, chapter 8, section 3, section 19-204, A.C.A.1939, "All statutes relating to pleading, practice and procedure, existing at the time this act takes effect shall be deemed to be rules of court and shall remain in effect as such until modified or suspended by rules promulgated pursuant to this act." (Effective June 12, 1939); that Rule 72, section 21-1801, limiting the time within which an appeal may be taken to 60 days from entry of judgment, was effective January 1, 1940, and is still in effect; and that Rule 72 is all-inclusive and governs all appeals permitted by law to the supreme court and, being the later rule, effects an implied repeal of the 30-day appeal period provided for in section 69-249. Appellant admits that this court is without jurisdiction to entertain the appeal unless it holds (a) that the appeal in this instance might be taken within 60 days and (b) that the 60-day period starts to run from the date that the clerk serves notice by mail and makes a note in the docket of the mailing or on the date that actual notice is had of the entry of the judgment.
Of course, if the jurisdictional fact is to be established only by the clerk mailing notice and making a note thereof in the docket of such mailing, actual notice is of no consequence. It might well be that the notice would never be received due to loss occasioned by riot, fire, flood or other innumerable catastrophies. If the jurisdictional fact is to depend upon the clerk mailing notice and making entry thereof in the docket, then the time within which an appeal might be perfected in this particular case has not started to run to this date.
In view of the fact that we are of the opinion the appeal period within which an appeal may be taken starts to run from the date of the entry of the judgment, it is not necessary for us to pass upon the proposition presented that Rule 72, section 21-1801, fixing the appeal period within 60 days from entry of judgment, constitutes [73 Ariz. 35] and effects an implied repeal of the ...