56 P. 725 | Ariz. | 1899
1. On October 31, 1896, A. L. Johns, the plaintiff in error in this court, as plaintiff'in the district court, filed a complaint against the defendant, the Phoenix National Bank, a corporation, seeking to recover $25,654.39 damages for the conversion of certain choses in action, and alleges: That the Bank of Tempe, being the owner of several promissory notes aggregating the sum of $17,953.51, principal and interest, did, on the-day of March, 1894, pledge the said notes to the said Phoenix National Bank as collateral security to secure the payment of an overdraft then due and of overdraft privileges. The first of said notes was for the sum of one thousand dollars, signed by Robert Bowen and W. A. Daggs; the second for three thousand dollars, signed by'A. J. Daggs, and indorsed by R. E. Daggs; the third for seven thousand dollars, signed by A. J. Daggs, and indorsed by R. E. Daggs; the fourth for five thousand dollars, signed by A. J. Daggs, and indorsed by R. E. Daggs; the fifth and sixth each being for four hundred dollars, and signed by H. Z. Zuck. That on the twenty-third day of May the Bank of Tempe made a general assignment for the benefit of creditors to D. A. Abrams, who thereupon became the assignee in bankruptcy of said Bank of Tempe; that thereafter on the twenty-eighth day of November, 1894, the Phoenix National Bank unlawfully sold, assigned, and delivered the notes to A. J. Daggs, the maker of a portion thereof, and that thereafter, on the ninth day of March, 1895, said Abrams, assignee of the Bank of Tempe, sold and assigned to said A. J. Daggs all of the right, title, and interest of said Bank of Tempe “in and to that
The plaintiff next, on the eleventh day of February, 1898, filed his petition in error and his bond on proceedings in error with the clerk of the district court, and obtained from the clerk of said court a summons in error of that date, which is in form and words as follows, to wit: “Summons in Error. In the name of the territory of Arizona, to L. H. Orme (sheriff) or any constable of Maricopa County, greeting: You are hereby commanded to summons the Phcenix National Bank, a corporation, with principal place of business at Phcenix,
2. Of the three reasons assigned by the defendant in error why the court, at this term, should dismiss the writ of error, as it did at the last term dismiss the appeal, the second relates to a rule of court as to time of filing papers, which can be extended, when good reason is shown, to accommodate delinquent parties, that justice may be done. The first and third are of a different nature, being jurisdictional. The question raised by the first—as to whether a proper summons had been issued and served upon the defendant in error—is not now an open question. This court, at the special July term, 1895, in the case of Annie Cadman v. Old Dominion
3. The third ground urged by the defendant in error why the writ of error should be dismissed was decided in the same case of Annie Cadman v. Old Dominion Copper Co., 5 Ariz. 103. In that case the appeal had- been taken and dismissed; afterwards a writ of error had been obtained, and because of the defect in the writ which we have just noticed the writ was dismissed; and afterwards a writ of error in proper form was obtained. At the January term, 1896, the second writ was dismissed, the court, presumably from the record, holding that the dismissal of the first writ of error was such a judgment in the case that no further proceedings in error or on appeal could be had. No opinion having been filed by the court in that case, let us take another short review of the law in relation to such matters. It is provided by paragraph'849 of the Revised Statutes that an appeal may be taken during the term of court at which final judgment is rendered by appellants giving notice of appeal in open court, and by filing with the clerk an appeal-bond within twenty days after the expiration of the term. Paragraph 851 provides that a writ of error may be sued out at any time within one year after final judgment was rendered. The rule in such cases is, where the dismissal of an appeal is for want of prosecution, or the dismissal is on
Sloan, J., Doan, J., and Davis, J., concur.