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Borrow v. El Dorado Lodge, Inc.

Supreme Court of Arizona

March 30, 1953

BORROW et ux.
v.
EL DORADO LODGE, Inc. et al.

Page 1028

[75 Ariz. 219] Udall & Udall, of Tucson, for appellants.

Darnell, Robertson & Holesapple, of Tucson, for appellees.

LOCKWOOD, Superior Judge.

The original opinion of the court in this case, affirming the judgment of the lower court on both the appeal and the cross-appeal, was handed down January 26, 1953, reported in 75 Ariz. 139, 252 P.2d 791.

Thereafter appellees filed a timely motion for rehearing, based upon the following grounds:

(1) That the appellate court erred in affirming the trial court's order denying appellees' motion for a directed verdict at the close of the entire case;

(2) That the court erred in not expressly ordering a new trial on all issues;

(3) That the court erred in failing to indicate the contents of its proposed mandate as to:

A. Costs on appeal, and

B. Interest on Judgment.

The first point urged is merely a reiteration of appellees' general grounds upon which the cross-appeal was based, and was adequately and thoroughly presented to the court upon the appeal. The court's opinion in that regard is unchanged.

However, since both appellees and appellants have indicated in their memoranda supporting and opposing the motion for rehearing an uncertainty as to the effect of [75 Ariz. 220] the court's original opinion with regard to (1) a new trial, (2) costs on appeal, and (3) interest on judgment, for clarification purposes this supplemental opinion is written.

The original opinion of this court did nothing more than affirm the orders of the trial court appealed from, and did not order a new trial. Appellants have correctly stated in their memorandum brief on motion for rehearing that an appeal suspends from the time of its perfection the time allowed by the judgment or order appealed from for the performance of a condition affecting a substantive right or obligation of a party, so that the time for the performance of such condition commences to run from the time the appellate court's judgment or order becomes effective, viz.: under our practice, the date of issuance of

Page 1029

the mandate. 3 Am.Jur., Appeal and Error, section 527.

Therefore, under the original opinion of this court appellants will have thirty days from issuance of the mandate herein in which to comply with the order of remitter ...


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