Town of Yuma v. Winn

Arizona Supreme Court

Town of Yuma v. Winn

148 P. 286, 17 Ariz. 92, 1915 Ariz. LEXIS 97

CourtArizona Supreme Court

DecidedMay 4, 1915

DocketCivil No. 1437

StatusPublished

Cited by6 cases

This text of 148 P. 286 (Town of Yuma v. Winn) 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.

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Town of Yuma v. Winn, 148 P. 286, 17 Ariz. 92, 1915 Ariz. LEXIS 97 (Ark. 1915).

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Opinion

ROSS, C. J.

The appellant has given no bond on appeal as provided by paragraph. 1236 of the Civil Code of 1913, nor has it been waived as provided by paragraph 1255, Id.

The appellee has filed his motion to dismiss the appeal, and it would seem the motion must be granted. The appellant apparently does not resist the motion, as it has given no reason why it should not be sustained, although it has been pending since December 15,1914. However, we presume that it supports or justifies its position by virtue of paragraph 1249, Id., which reads:

“No bond shall be required upon any appeal taken by the state of Arizona, or any county thereof, or by the corporation commission, tax commission, or any other state board or [93]*93commission, or by any state or county officer in Ms official capacity. ”

The general rule prescribed by law is that all parties appealing to the supreme court shall be required to execute an appeal bond. The exceptions to the general rule are contained in paragraphs 1249, supra, and 1250, Id. The appellant does not, in terms nor by implication, fall within the exceptions. This is a condition arising through legislative omission, which we cannot supply by construction. The rule is that exemptions, such as contained in paragraphs 1249 and 1250, supra, being in derogation of the general law, may not be extended, to include cases not within the terms of the exemptions. Mitchell v. Board of Education, 137 Cal. 372, 70 Pac. 180.

The motion to dismiss is granted.

FRANKLIN and CUNNINGHAM, JJ., concur.

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ROSS, C. J.

The appellant has given no bond on appeal as provided by paragraph. 1236 of the Civil Code of 1913, nor has it been waived as provided by paragraph 1255, Id.

The appellee has filed his motion to dismiss the appeal, and it would seem the motion must be granted. The appellant apparently does not resist the motion, as it has given no reason why it should not be sustained, although it has been pending since December 15,1914. However, we presume that it supports or justifies its position by virtue of paragraph 1249, Id., which reads:

“No bond shall be required upon any appeal taken by the state of Arizona, or any county thereof, or by the corporation commission, tax commission, or any other state board or [93]*93commission, or by any state or county officer in Ms official capacity. ”

The general rule prescribed by law is that all parties appealing to the supreme court shall be required to execute an appeal bond. The exceptions to the general rule are contained in paragraphs 1249, supra, and 1250, Id. The appellant does not, in terms nor by implication, fall within the exceptions. This is a condition arising through legislative omission, which we cannot supply by construction. The rule is that exemptions, such as contained in paragraphs 1249 and 1250, supra, being in derogation of the general law, may not be extended, to include cases not within the terms of the exemptions. Mitchell v. Board of Education, 137 Cal. 372, 70 Pac. 180.

The motion to dismiss is granted.

FRANKLIN and CUNNINGHAM, JJ., concur.

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148 P. 286, 17 Ariz. 92, 1915 Ariz. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-yuma-v-winn-ariz-1915.

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