Edward ACKEL, Sr., father of the defendants hereinafter named, Appellant,
Alexander ACKEL and Victoria Ackel Karam, as Trustees of and under the Last Will and Testament of Salim Ackel, Deceased, Plaintiffs and Appellees, Frederick Ackel, Edward Ackel, Jr., and Daniel Ackel, Minor Defendants.
[83 Ariz. 208] Andrew L. Bettwy, Phoenix, for appellant.
Moore & Romley by Anthony T. Dedens, Phoenix, for plaintiffs-appellees.
No appearance was made by defendants.
UDALL, Chief Justice.
The sole appellant here is Edward Ackel, Sr. While he presents some twenty-two poorly-drawn assignments of error and fifteen supporting propositions of law, we are of the opinion the appeal can be effectively disposed of by considering only these two related questions, viz.:
1. Did the trial court err in its finding of fact and its judgment based thereon, that appellant was not a party to the suit nor a person interested in the outcome of these proceedings?
2. If the above question be answered in the negative, does the appellant have any standing to prosecute this appeal either as 'an aggrieved person' or as an 'amicus curiae' and does such an appeal properly invoke the jurisdiction of this court?
Appellees (plaintiffs) raise this latter question by a motion to dismiss the appeal.
For convenience and brevity, the plaintiffs in the trial court (appellees herein) will be referred to as plaintiffs. The minor defendants will be named as such and their [83 Ariz. 209] guardian ad litem will be referred to as the guardian; Edward Ackel, Sr. will be referred to either as appellant or as the father of the minor defendants.
A brief resume of the proceedings in the trial court is essential to an understanding of the determinative problems presented, supra. The suit was brought under the provisions of the Declaratory Judgment Act (Art. 7, sections 27-701 to 706, A.C.A.1939; now A.R.S., Title 12, Article 2).
Plaintiffs, as Trustees under the Last Will and Testament of Salim Ackel, deceased, filed suits seeking authority to sell certain real property belonging to the trust, and invoking the general equity jurisdiction of the court to allow them to sell said property. The three minor beneficiaries of the trust were named as parties defendant. Two of the minor defendants were over 16 years of age, one was under 16 but over 14 years of age.
The amended complaint disclosed that plaintiffs had negotiated a sale of real property described therein as Parcel No. 2 (this is a parking lot opposite the Paramount Theatre at Adams and Second Avenue) for the price of $168,625; that an undivided one-fourth interest of said property was included in the res of said trust; and that the trustees, as individuals, and their brother Lionel, each owned an undivided one-fourth interest therein; the negotiated sale being subject to approval and order of the court authorizing and directing the trustees to make the sale on the terms therein disclosed. Said amended complaint also alleged that one of the tenants in common (other than the trustees) had threatened to force a sale of the premises by partition if the court failed to approve and authorize the negotiated sale of said property, which forced sale, it was alleged, would result in a loss to the trust estate.
They invoked the general equity powers of the court seeking authority to sell at the negotiated sale price to protect and preserve the property of the trust estate represented by the value of its one-fourth interest in said property, in order to avoid a loss at a public sale in the threatened partition proceedings and to avoid future litigation.
Defendants, then of the ages of 20, 18, and 14 years respectively, were personally served within the State of Arizona. Appellant was also served personally within the state-not as a party defendant but to give notice only as the father of the 14-year-old defendant, Daniel Ackel. This service was made pursuant to section 21-305(2)(A), A.C.A.1939 as amended effective September 1, 1953 (now rule 4(d)2, Rules of Civil Procedure, 16 A.R.S.), which states:
'Upon a minor under the age of sixteen years, by service in the manner set forth in subdivision (1) of this rule [83 Ariz. 210] upon the minor and upon his father, mother or guardian, within this state, or if none be found therein, then upon any person having the care of control of such minor, or with whom he resides. * * *' (Emphasis supplied.)
Undoubtedly the object of the rule is to bring notice to one who would naturally feel enough interest in the infant to see that his rights were protected. However, it does not make such person a party to the suit. Cf. Cheatham v. Whitman,86 ...