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State ex rel. Morrison v. Jay Six Cattle Co.

Supreme Court of Arizona

February 25, 1959

STATE of Arizona ex rel. Robert MORRISON, Attorney General, Appellant,
v.
JAY SIX CATTLE COMPANY, Inc., a corporation; P. C. Getzwiller and Marian T. Getzwiller, his wife, Appellees.

[85 Ariz. 221] Robert Morrison, Atty. Gen., Ccharles L. Hardy, Asst. Atty. Gen., for appellant.

James Elliott Dunseath and Robert C. Stubbs, Tucson, for appellees.

PHELPS, Chief Justice.

We are presented here with the question of whether the State of Arizona [85 Ariz. 222] may appeal from a judgment in condemnation proceedings in a case wherein it believes the damages awarded to be excessive and that errors of law were committed in the reception of evidence and where under the law and pursuant to stipulation and an order of court, the condemnees have been paid the full amount of their judgment, satisfied the same upon the records of the court, and filed an abandonment of all defenses to the action except as to the amount

Page 800

of damages. The parties will be hereinafter designated as the State and appellees.

The facts are that the State instituted condemnation proceedings against appellees involving certain land approximately seven miles west of Benson, Arizona, which the State needed for highway purposes. Under the provisions of A.R.S. § 12-1116 the State had entered into the possession of said property and began construction of the new highway. Thereafter trial was had and judgment was entered by the court on June 6, 1958, awarding damages therefor to appellees respectively. The State had paid the full amount of said judgment into the court under the provisions of A.R.S. § 12-1116 and § 12-1127; and a stipulation entered into between counsel for the State and the appellees. The appellees made application to the court to order the money which had been deposited with it by the State to be paid to them. The court entered such an order on August 18, 1958, following, and on September 2, 1958, appellees satisfied their respective judgments in full. The State had theretofore on July 22 filed its notice of appeal to this court. On October 3 appellees filed their motion to dismiss the appeal. It is the issue raised by this motion that we now consider. We deem the matter of sufficient importance to require a written opinion.

In the first place, A.R.S. § 12-2101 is authority for the right of the State to appeal, and Rule 73(a) of the Rules of Civil Procedure, 16 A.R.S., provides that:

'A judgment or order in a civil action or proceeding may be reviewed by appeal as prescribed in these Rules, and not otherwise. The appeal may be taken by any party aggrieved by such judgment or order.'

This, without the aid of other authority, gives to the State the right of appeal as an aggrieved party.

We are not too much persuaded by the argument of counsel for appellees that the State waived its right to further prosecute its appeal by the chain of events recited therein, to wit: (1) by the voluntary payment of the amount of said judgment; (2) by taking possession of the property condemned; (3) by using and appropriating appellees' property which had been condemned in the action. All of the above acts of the State were done pursuant to the provisions of the Constitution and the statutes relating to eminent domain.

[85 Ariz. 223] It is argued that pursuant to a stipulation between counsel for the parties litigant, the superior court ordered the money deposited in court by the State to be paid to appellees upon their filing a satisfaction of judgment and an abandonment of all defenses to the action except as to the amount of damages to which they may be entitled; that by such stipulation and action of the court the State waived its right of appeal. We have carefully read the stipulation and are definitely of the view that it gave to appellees nothing they were not entitled to under the law nor did it bind the State to do anything it was not bound to do under th law. '* * * enforced satisfaction of a judgment does not prevent the prosecution of an appeal therefrom by the defendant.' Hartke v. Abbott, 106 Cal.App. 388, 289 P. 206, 207. The State here became the judgment debtor and under the statute was forced to pay upon demand by the owner.

Article 2, section 17 of the Arizona Constitution, A.R.S., insofar as here material provides that:

'* * * No private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into court for the owner, * * *.'

A.R.S. ยง 12-1116 provides that the State may, at the time of filing the complaint, or any time thereafter, make application to the court for possession of the property sought to be condemned. Thereupon the court fixes a time for hearing, giving proper notice thereof, and if it appears that the use for which it is sought to be condemned is a necessary use, the court proceeds to hear evidence as to ...


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