*1 in such (cid:127)not be included amount. For that
reason, the remanded for a deter- matter is owing
mination of the amount due and
alimony, support attorney’s cost and fees issued, together time
at the the writ was necessary attorney’s cost fees preparation hearing on the writ amount, up
itself. That amount bond, may over, paid then be and the
remainder, any, appel- if returned
lants. pro-
The matter is remanded for further
ceedings opinion. not inconsistent with this
STEVENS, J., DONOFRIO, J.,
concur.
Perry W. HURST and Estelle V. wife, Appellants, his wife,
Lee J. HURST and Ilah A. his Appellees.
No. 2 CA-CIV 9. Appeals
Court of of Arizona.
Sept. 22, 1965.
Rehearing Denied Oct.
Review Denied Dec. *2 Hughes Phoenix, Hughes, & C.. John Phoenix,
Hughes, counsel, appellants. for Haynes, Jr., C. H. Harry John Haynes, Tucson, Haynes, Jr.,. John Tucson, counsel, appellees. HATHAWAY, Judge. petition rehearing
On the as to which had, argument a second oral we have light reconsidered of a this matter in complete more record. We conclude required. a different result is chronological A brief calendar of history litigation to a of this is essential proper problems in- understanding of the appeal: volved in this Complaint filed 11, 1954 June Receiver appointed February Judgment (appealed from in first appeal)
Order confirming April 14, receiver’s sale Decision on first October Judgment 29,1960 December Judgment and distributing order (appealed from in appeal)
second
Notice of
April 14, 1961
There have
lower
been two trials
therein
Our
rendered.
has
Court
appeals
court and
judgments
taken from the
highly
commented
confused record
case,
Co.,
which has simmered for eleven
v. Union Cent. Life Ins.
in this
79 Okl.
Ford,
(1920); Brady
confused
P.
years.1 The record became more
;
appeal.2
Wash.
(1935)
on the second
McEntire,
Poole v.
209 Ga.
75 S.E.2d
proportions
taken
Thiá Case has
on the
confirming
order
*3
1,000-piece jigsaw puzzle
several
of a
with
April 14, 1958,
sale was entered on
the
and
pieces missing in the record before us. We
appeal
years
was
four
filed
later. Notice
entire
examine the
have undertaken to
appeal
from the order should have been
and
proceedings, judgments,
all
record of
days
filed within 60
from the date of its
pieces.
supply missing
orders in order to
the
entry.
Procedure,
Rules
of Civil
“sifting
sorting”
the fur-
This
and
was for
Rule 73(b)
per-
amended.
as
the
Since
purpose
determining
ther
matters
what
appeal
fecting
prescribed
of an
within the
adjudicata
first
had
res
since the
become
period
jurisdictional,
Gray,
Murphey
307,
299,
84 Ariz.
(1958);
cluded from attacking validity the SALE PROPERTY PARTNERSHIP OF sale. Appellants our at have called to ALLOWANCE OF SALARY that, although order tention the fact For the set original reasons forth in our confirming partnership property the sale of opinion concerning salary the allowance of was in the on embodied abstract of record Hurst, to Lee reiterate that an allowance appeal, the sale after first occurred $6,000 per year for 1951 and judgment appeal from which the first $12,000 salary sum affirmed. The agree propriety that taken. We obligation. is a partnership required to be
conduct of the sale was not appeal question first raised since the subsequent judgment appealed
arose to the VALUE OF APPELLANTS’ SHARE from. appeal, second appellants On the hold, though still differ We for a argued length great at concerning the er reason, ent that from are barred roneous of the value of their question. confirm raising The order agreed share. This court that which ing the sale was a final order from were to recover the entitled value as 12-2101, subsecs. lies. A.R.S. § dissolution, the date of 1954. E, amended; C McClos Shortle v. remanded the a Therefore we matter for (1934); key, 38 N.M. proper value, rejecting determination of White, see 85 Ariz. Redman price” both the set the trial “sale value holding (1959).4 Other cases court and the “book” value in the master’s judicial sale confirming a that an order report. accounting (The issue of value was requisite appeal- finality to be an has the expressly litigated nor Co., was it referred Sage v. Central R. able order determination.) 24 L.Ed. Vann to the master for U.S. 3. 86 Ariz. Ibid. Hurst v. (1959). P.2d 1001 vacating Ariz.App. 227, an execution Order sale was
2. Hurst v. appealable held to be an order. P.2d 232 assignment no of error relative appeal in case was taken closes first this equal assets. division of judgment from the part: recited 1958 which Court on mandate of Ordered, Adjudged Decreed the first stated “It is appealed and remanded was reversed as follows: terest in and to belongs to the “13. That the profits all supplied) after the division ly between the are entitled entitled to including the lease “12. [*] bank obligations; any That the and assets of of [*] accounts, other payment judgment, to, an partnership; profits and assets plaintiffs partners [*] property all partners (Emphasis on farming undivided partnership premises [*] *** each or undistributed * that remain partnership, equipment, thing (Emphasis [*] * * supplied) own, equal in- farmed, equal- debts that are [*] a by allowing the to the determination should we appellants’ respects the dissolution. value of their share of the raised February, erty had with instructions appellee, agerial” sets light of interpret utilized respect expenses Court been interest the written by appellees these instructions Reading this mean first (2) to judgment, the issue in finally appellants interest on the or remuneration owed (1) Paramount in modify opinion was affirmed. determined grant partnership after that As “living *4 partnership as- Pictures, Inc. any objection stated of the in the date of have been new all or man- in by court, prop- other trial The our in be depreciation is not to Holmes, “14. That P.2d Ariz. accounting division considered in the or Min. (1941), quoting from Arizona-Parral assets; Forbes, Ariz. 146 P. Co. v. but awarded one-half of ment when read bid of ward the is successful partnership assets.” The extent diction “16. That “18. sold one construction. The ifc ****** accepted above-mentioned sale and place, above-quoted provisions of the That * * *; either ** [*] the interest owned distributing purchase bidder by the Court at the Court credit * plaintiffs [*] together partnership until a final and in the in may price [*] be allowed retains or plaintiffs proceeds property; bid to the then-existing defendants [*] said any assets capable by event a juris- other such time [*] judg- to- were be the value matter is puted (1915) : for thereafter presented finally determined and all them as versed Therefore, piecemeal. litigants review affirmed.’ by the record tions « * * So it is as a final *; will, by res that may speedily on the ” appellants’ 'appeals expressly adjudicata. we There must all (Emphasis be judgment, Appellate date all implication, be deemed retract our will questions reserved for advanced, first as the cannot questions presented be considered share affirmed dissolution. supplied.) Court or not at be an end to contention of be allowed and decided. must be com- such holding thereafter must or ques- all; re- by be as that partnership payment of value property, after the determination of Since question partnership obligations, settled, nothing re- consider the shall liquidation appellee’s in deposits” be mained to done other than certain “unidentified Appel pro- prior assets and distribution of the bank account dissolution. equal partner ap- deposited in both ceeds shares. Lee had Examination of lee Hurst pellants’ in ship personal in his own filed first dis- funds and funds briefs report 53(h); (9th accounting Smith v. Hovland personal Cir.), account. (1926). these F.2d The master’s excluded exclusion trial court prepared for the un- computing the of these amounts as a deposits partnership in asset unidentified may predicated belonging to have been on his deter- cash distributed they subsequent that this mination that were received We hold partnership. dissolved Appellants having to dissolution. failed to erroneous. partially was report clearly show that the master’s fiduciary relation- in a partner stands A finding, as this erroneous we will not set Howard, co-partner. ship Smith to his it aside. (1955); 280 P.2d 76 Ida. Inclusion of the above-enumerated un- Duccini, 111 Inc. Atlantic Wine Pacific deposits partnership property identified Cal.App.2d requires the total cash 678, 211 Matson, Cal.App.2d Stowe v. adjusted $27,043.66. ($17,- assets be mixes trustee If a plus as fixed in the court below own, com- the entire with his trust funds $9,656.66.) trust treated as mingled mass should trustee property except far as so INTEREST ALLOWANCE is his. distinguish what able may be *5 29, judgment The entered on December Boroughs 256; Am.Jur., v. Trusts 54 § 1960, appellants allowed interest to for 150, Okl., 152 Whitley, period 31, months,5 of 37 156, from March 230, Ayers Fay, Okl. 27, 1957, February 1954 to the date on having estab- (1940). The evidence partnership which the receiver took over the in money deposited part lished that appealable assets. This partnership or account was Lee Hurst’s interlocutory judgment an determin- which upon the funds, it was incumbent trust parties ed rights an and directed distinguish trustee-partner, to Lee G, accounting. 12-2101, subsec. Boroughs Whitley, § personal funds. his Appellants precluded as amended. are now un- supra. do this and the He failed from challenging the amount allowed. We 1952, deposits identified review, will not on an from a subse- partnership as a should have been treated quent judgment (March 14, prior 1961), a are: cash asset. The amounts involved appealable judgment (December 29, 1960) from which no has been taken. 5 $ Appeal 1496; and Error Martin § C.J.S. 6,952.87 Culpepper, 253 Ala. 44 So.2d 2,408.57 Holiday, Glaser, 569 (1950); Inc. v. $9,656.66 Total (Fla.App.1960). 54(b) So.2d Rule of the inappli- Rules of Civil Procedure is cable parties because all claims of the in the accounting report for master’s adjudicated instant case were in inter- year in 1954 excluded certain rental locutory judgment of December 1960. Appel deposits. come and unidentified lants claim that one-fourth each should COSTS partnership have been included as a cash position We find no reason to alter our partnership asset dis since the was not on the allowance of costs. However, until solved March 1954. SUMMARY adoption report trial of the is bind court’s ing clearly unless shown to be erroneous. Having prior revised our decision as Procedure, forth, A.R.S. Rules of Civil Rule proceedings herein set no further pre- figure per In the interests of mathematical remains 37 months se cision, computation unchallenged note that accurate in the record. in results 35 months interest. However part- judgments Re-examination the dissolved
required. The assets of (a) 1960 and $212,043.66consisting of: on December nership total respectively, discloses the trial court $170,000, proceeds the sale of $27,043.66, an interests to from March personalty awarded (b) leasehold part- The latter appellees for 1954 to account receivable from specifying pe- judgment, in addition to not accounted nership cash received allowed, approv- $15,000, riod for which interest was for, account receivable (c) report and ratified ed the master’s wherein partnership cash receiv- from Ap- computed months. obligation partnership interest was for 37 only ed. The not, appellee pellees by cross-appeal or did either $12,000 salary is the allowance $200,- otherwise, challenge of the balance the correctness leaving Lee a net figure. 37 months Appellants’ undivided half interest 043.66. $100,021.83. equals in Deduction said sum In the trial court view of the fact that $15,000 account receivable spec- of interest for a ordered the allowance appellants’ their distributive interest reduces period, in ified the erroneous $85,021.83. Appellants’ dis- share final accepted ap- report, though master’s
tribution is: binding. proved judgment, the same only Therefore 35 months interest Balance in net oí share appellants’ added to share and their final 85,021.83 assets $ months interest at 6% accordingly distribution is amended as fol- 15,729.04 $85,021.83 lows : $100,750.87 Total part- Balance share in net is modified to allow nership $85,021.83 $100,750.87 appellants as their sum of *6 35 months interest at 6% distribution, effective of March 14,878.82 $85,021.83 by The distribution shall be effected credit- $99,900.65 Total payment ing with in full of the $5,000 due from them on the Conditional is modified allow April 22, by Sales Contract dated 1958 and $99,900.65 appellants sum as their dis- $95,750.87 crediting as the the balance of tribution, effective as of payment down on account of the contract The distribution shall effected credit- February 25, for Sale of Real Estate dated ing payment in full of the whereby appellants purchase agreed $5,000 due from them on the Conditional property. the leasehold April Contract dated 1958 and Sales $94,900.65 by crediting the balance of as the KRUCKER, MOLLOY, J., J., C. payment on account down Contract concurring. da,ted February 25, of Real Estate Sale whereby appellants purchase agreed FOR REHEARING ON MOTION property. the leasehold requirements 47(a)1 The time of Rule HATHAWAY, Judge. as to rehearing shall commence from notice modify On our own motion we are supplemental decision, of this so that its Septem ing rehearing, filed our decision on prejudice right issuance will not of re- 22, 1965, ber inter as to the parties view the to this appellants. allowed therein In all est KRUCKER, MOLLOY, J., J., con- respects other our decision remains the curring. same. Appeals, Arizona)
1. VIII. Court of Rule Rules of the Rules Court of