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Marquez v. Rapid Harvest Co.

Supreme Court of Arizona

December 30, 1960

John R. MARQUEZ, by his Guardian ad litem, Malcolm L. Hillock, Appellant,
v.
RAPID HARVEST CO., a California corporation; and Joe Macias, Appellees.

Page 169

[89 Ariz. 63] Udall & Udall, and Hillock & Hillock, Tucson, for appellant.

[89 Ariz. 64] Darnell, Holesapple, McFall & Spaid, Tucson, for appellees.

BERNSTEIN, Justice.

The questions dealt with herein arose in connection with a motion to dismiss an appeal for want of jurisdiction. Specifically involved is the interpretation to be given 16 A.R.S., Rules of Civil Procedure, Rules 73(b) and 73(p).

The appeal was taken from an order denying a motion for new trial in an action where damages were sought by a guardian ad litem for personal injuries incurred when his minor plaintiff (hereinafter referred to as 'appellant') was struck, while harvesting lettuce, by a truck driven by defendant (hereinafter referred to as 'appellee'). Judgment was entered against appellant on April 7, 1960, and the order denying his motion for new trial was dated April 27, 1960. Thus, under A.R.S. Rule 73(b), appellant had 60 days from the latter date in which to take his appeal. Notice of the appeal was timely, as it was filed on June 24, 1960. However, no bond for costs on appeal was filed until July 5, 1960, approximately eight days after the expiration of the statutory period. Appellee then moved to dismiss the appeal, contending that Rule 73(b) requires that both the notice of appeal and the appeal bond be filed within the sixty-day period, and that both steps are prerequisites to this Court's jurisdiction. Appellant answered by denying that filing the bond within the statutory period was a jurisdictional requisite, and by adding that under Rule 73(p) he, as a minor plaintiff through his guardian ad litem, was exempt from filing a bond.

It is a rule of statutory interpretation that statutes must be interpreted

Page 170

in conformity with language used therein. [1] Mayberry v. Duncan, 68 Ariz. 281, 205 P.2d 364. Moreover, if the language of a statute is plain and unambiguous, and can be given but one meaning which does not lead to an impossibility or absurdity, the court will follow that meaning. Ernst v. Collins, 81 Ariz. 178, 302 P.2d 941; Garrison v. Luke, 52 Ariz. 50, 78 P.2d 1120; Avery v. Pima County, 7 Ariz. 26, 60 P. 702. The relevant portion of Rule 73(b) reads as follows:

'1. When an appeal is permitted by law to the supreme court, it shall be taken by notice filed with the superior court within sixty days from the entry of the judgment or order appealed from, unless a different time is provided[89 Ariz. 65] by law, and by filing within such time a bond for costs on appeal.' (Emphasis supplied.)

We think the use of the conjunction 'and' in the above language clearly indicates that the filing of notice and bond were to be parallel requirements.

In contending that Rule 73(b) does not make filing a bond jurisdictional, appellee relies primarily on Lount v. Strouss, 63 Ariz. 323, 162 P.2d 430. In the Lount case, this Court construed the 1939 Rules of Civil Procedure and concluded that filing a bond was not jurisdictional. This decision seems to have resolved uncertainty created by the separation of the basic requirements for taking an appeal into different sections of the Rules. Section 21-1801 of the 1939 Rules, provided that:

'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.' (Emphasis supplied.)

It is to be noted that section 21-1801 did not mention that a bond was to be filed within the statutory period. However, section 21-1804 provided that 'whenever a bond for costs on appeal is required by law, the bond shall be filed with the notice of appeal.' To clarify the meaning of this vague and incomplete language, the Court looked to section 21-1815, which provided that

'If a bond on appeal * * * is not filed within the time specified, or if the bond filed is found insufficient, and if the action is not yet docketed with the Supreme Court, a bond may be filed at such time before the action is so docketed as may be fixed by the superior court. After the action is so docketed, application for leave to file a bond may be made only in the Supreme Court.'

The Court found that the above section so weakened the absolute requirement of filing a cost bond within the statutory period that it declared '* * * the posting of a cost bond at the time of filing notice of appeal is no longer a jurisdictional requisite.' Lount v. Strouss, supra, 63 Ariz. at page 328, 162 P.2d at page 432.

As we have earlier indicated, the uncertainty apparent in the 1939 rules does not exist in our present rules. Moreover, our present rules are virtually identical with the 1928 and 1913 provisions, [2] under [89 Ariz. 66] which the filing of a ...


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