Dean v. Territory of Arizona

Arizona Supreme Court

Dean v. Territory of Arizona

108 P. 476, 13 Ariz. 152, 1910 Ariz. LEXIS 77

CourtArizona Supreme Court

DecidedApril 2, 1910

DocketCivil No. 1141

StatusPublished

Cited by5 cases

This text of 108 P. 476 (Dean v. Territory of Arizona) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dean v. Territory of Arizona, 108 P. 476, 13 Ariz. 152, 1910 Ariz. LEXIS 77 (Ark. 1910).

Pincite

Opinion

PEE CURIAM.

Appellant, as plaintiff below, filed an original and three amended complaints. The third amended complaint was, upon motion, stricken from the files. Thereupon a demurrer was presented to the second amended complaint, which was sustained, and, plaintiff declining to amend, judgment was rendered dismissing the action at her costs. Thereafter she moved for a correction of the judgment in some particulars, which motion was denied. Notice of appeal to this court was given “from the judgment of the court heretofore entered herein on the ninth day of October, A. D. 1909, and from the order of the court denying plaintiff’s motion to correct the judgment. ’ ’ A bond on appeal was filed, which was conditioned as follows: “Whereas said plaintiff has appealed to the supreme court of the territory of Arizona from the order of said district court striking from the records thereof the plaintiff’s third amended complaint; also from the order sustaining the demurrer to the second amended complaint, and has also appealed from the judgment rendered and entered on or about the ninth day of October, 1909, dismissing said cause and for costs against the plaintiff: Now, therefore, we, the said principal and said sureties, hereby undertake and promise that said appellant shall prosecute her said appeal with effect, and shall pay all costs which have accrued in said district court, or which may accrue in said supreme court.”

Aside from the fact that the bond does not properly describe the cause in which the orders complained of were made, it is fatally defective because of uncertainty. It recites separate and distinct appeals from a judgment and from two orders, but obligates the principal and sureties to the payment of the costs but upon one, since it requires only that the appellant “shall prosecute her said appeal with effect.” It is impossible to determine which of the appeals the bond is intended to secure. Because of its ambiguity, it is a nullity, and does not operate as an appeal bond. Creek v. Bozeman Waterworks Co., 22 Mont. 327, 56 Pac. 362; Washoe Copper Co. v. Hickey, 23 Mont. 319, 58 Pac. 866; Wallace v. McKinlay, 6 Idaho, 95, 53 Pac. 104; Corcoran v. Desmond, 71 Cal. 100, 11 Pac. 815; Centerville etc. Co. v. Bachtold, 109 Cal. 111, 41 Pac. 813. A sufficient appeal bond is necessary to give this court jurisdiction. There not being such in this case, we [155]*155have no authority to review the judgment and orders of the district court. While no motion was made to dismiss the the appeals, we feel it our duty to decline to consider the case on its merits, since the question of the defects in the appeal bond may be raised upon rehearing. Shattuck v. Costello, 8 Ariz. 255, 71 Pac. 940.

The appeals are dismissed.

DOAN, CAMPBELL, and DOE, JJ., concur.

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PEE CURIAM.

Appellant, as plaintiff below, filed an original and three amended complaints. The third amended complaint was, upon motion, stricken from the files. Thereupon a demurrer was presented to the second amended complaint, which was sustained, and, plaintiff declining to amend, judgment was rendered dismissing the action at her costs. Thereafter she moved for a correction of the judgment in some particulars, which motion was denied. Notice of appeal to this court was given “from the judgment of the court heretofore entered herein on the ninth day of October, A. D. 1909, and from the order of the court denying plaintiff’s motion to correct the judgment. ’ ’ A bond on appeal was filed, which was conditioned as follows: “Whereas said plaintiff has appealed to the supreme court of the territory of Arizona from the order of said district court striking from the records thereof the plaintiff’s third amended complaint; also from the order sustaining the demurrer to the second amended complaint, and has also appealed from the judgment rendered and entered on or about the ninth day of October, 1909, dismissing said cause and for costs against the plaintiff: Now, therefore, we, the said principal and said sureties, hereby undertake and promise that said appellant shall prosecute her said appeal with effect, and shall pay all costs which have accrued in said district court, or which may accrue in said supreme court.”

Aside from the fact that the bond does not properly describe the cause in which the orders complained of were made, it is fatally defective because of uncertainty. It recites separate and distinct appeals from a judgment and from two orders, but obligates the principal and sureties to the payment of the costs but upon one, since it requires only that the appellant “shall prosecute her said appeal with effect.” It is impossible to determine which of the appeals the bond is intended to secure. Because of its ambiguity, it is a nullity, and does not operate as an appeal bond. Creek v. Bozeman Waterworks Co., 22 Mont. 327, 56 Pac. 362; Washoe Copper Co. v. Hickey, 23 Mont. 319, 58 Pac. 866; Wallace v. McKinlay, 6 Idaho, 95, 53 Pac. 104; Corcoran v. Desmond, 71 Cal. 100, 11 Pac. 815; Centerville etc. Co. v. Bachtold, 109 Cal. 111, 41 Pac. 813. A sufficient appeal bond is necessary to give this court jurisdiction. There not being such in this case, we [155]*155have no authority to review the judgment and orders of the district court. While no motion was made to dismiss the the appeals, we feel it our duty to decline to consider the case on its merits, since the question of the defects in the appeal bond may be raised upon rehearing. Shattuck v. Costello, 8 Ariz. 255, 71 Pac. 940.

The appeals are dismissed.

DOAN, CAMPBELL, and DOE, JJ., concur.

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108 P. 476, 13 Ariz. 152, 1910 Ariz. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dean-v-territory-of-arizona-ariz-1910.

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