127 P. 725 | Ariz. | 1912
From a judgment in favor of the defendant in the court below, and an order overruling a motion for a new trial, the plaintiffs prosecuted an appeal to this court, and perfected the appeal by giving a bond for costs. No supersedeas bond was given as is required by the statute to suspend the execution of the judgment pending the determination of the appeal therefrom. Subsequently, upon application of the defendant—the application being resisted by plaintiffs—the lower court issued an order requiring the commissioner who had been appointed for that purpose to proceed to perform the duties of his office, and execute the judgment of the court in said cause. From this order the plaintiffs appealed, giving a bond to stay the execution of the order. The defendant in the court below, the appellee here, moves to dismiss the appeal from the order for want of jurisdiction in this court to entertain it. It will be seen from the foregoing statement that the motion to dismiss is directed to an appeal which comes to this court from an order of the trial court made after judgment.
We bear in mind the rule that the right to appeal depends entirely on express statutory enactment, and that, if the statute does not confer it, the right does not exist. Spicer v. Simms, 6 Ariz. 347, 57 Pac. 610; De Hanson et al. v. District Court, 11 Ariz. 379, 94 Pac. 1125.
Does the statute confer the right of direct appeal from the order made in this case? The jurisdiction of the supreme court to review orders upon direct appeal is limited by the statute to the following orders enumerated in paragraph 1214, Revised Statutes of Arizona of 1901: “ (1) An order refusing a new trial or granting a motion in arrest of judgment. (2) Any order affecting a substantial right, made in any action when such order in effect determines the action and prevents judgment from which an appeal might be taken. (3) A final order affecting a substantial right made in special proceedings or upon a summary application in any action after judgment. (4) An order or judgment in habeas corpus cases.” The appellants do not call our attention to the precise provision of the statute relied upon, but the appeal is evidently prosecuted upon the theory that the order is embraced within the terms of subdivision 3 of the paragraph quoted, to wit: “A final order affecting a substantial right made in special proceedings
Coming to the merits of the appeal from the judgment, it is observed that one Margaret C. Heyl, the mother of the plaintiffs in the present action, was on the fourth day of January, 1905, the owner of certain property in the town of Yuma, Arizona, which property was then subject to a judgment of the district court of Yuma county in favor of one John Stofella, the appellee here. The amount of the judgment was $15,700, and Stofella was about to sell the property under an execution to satisfy his judgment. To prevent the sale, Mrs. Heyl executed a deed to the property to one M. J. Nugent, which was without consideration other than the promise of Nugent that he would satisfy the Stofella judgment and hold the property in trust for the children of Mrs. Heyl, the appellants here. Mrs. Heyl also executed another deed to Stofella, the appellee here, for a part of the land in question, and a mortgage on the remainder to secure the payment of his judgment. In this state of matters Nugent brought an action against Stofella to quiet title to the property in question, and
Prom this judgment of the territorial supreme court Stofella appealed to the supreme court of the United States, and that court reversed the judgment of the supreme court of the territory, and affirmed the judgment of the district court of Yuma county. In giving its judgment the supreme court of the United States observed that if Nugent is allowed to have the land free of all charge and the Stofella claim extinguished, which the judgment of the supreme court of the territory so directed, Nugent gets much more than he bargained for, and Stofella is deprived of his equitable interest in Nugent’s covenant to pay the mortgage debt, and thereby Stofella is made to lose a large sum of money rightly due to him, not from any necessity of justice, but simply because he has acted badly, and therefore any treatment is good enough for him. The supreme court of the United States did not draw its inference from the evidence independently, but under the law it was concluded by the facts as certified by the territorial
We have not pretended to state in extenso the facts underlying all this litigation, the record being replete with crimination and recrimination as to the good faith of the respective parties, a matter with which this- court has no concern in its present status. This abridged statement is sufficient, however, to give an intelligent understanding of the only point at issue on this appeal. This action was originally brought in Yuma county, but was transferred to Pima county for trial. In the judgment appealed from it was sought to decree the rights and equities of the parties to the property affected by the suit. Among other things, the judgment provides “that there is due from the proceeds of the sale of the real property herein-before described and ordered sold to defendant John Stofella the sum of fifteen thousand seven hundred ($15,700) dollars, with interest thereon from January 9, 1905, at the rate of 6 per cent per annum.”
It is conceded by both parties to this appeal that the only question for determination is—Did the trial court err in giving appellee, Stofella, judgment for any greater sum than $15,100 without interest, or should the judgment in favor of Stofella for $15,700, with interest thereon at the rate of six per cent per annum from January 9, 1905, be affirmed? The basic principle underlying the judgment of the district court of Yuma county, and the judgment of the supreme court of the United States affirming it, is that he who seeks equity must do equity. This maxim expresses the governing principle that every action of a court of equity in determining rights and awarding remedies must be in accordance with conscience and good faith. The meaning of this principle has been definitely expressed by an eminent author in the following terms: “ ... it may be regarded as a universal rule governing the court of equity in the administration of its remedies, that whatever may be the nature of the relief sought by the plaintiff, the
In the judgment presently before this court Stofella was allowed $15,700, with interest thereon at the legal rate of six per cent from January 9, 1905, under the theory that the defendant, Stofella, could not be placed in the same condition in which he stood before the rescinded deeds were made without allowing him compensatory damages for being kept out of the use of his money. That such damages were expressed in the decree in the form of interest is not of pith and moment in this case, for equity looks more to the substance of things and less to the form in which it is expressed.
This cause was tried on a stipulation of the parties, by which stipulation the trial court was precluded from allowing interest antedating the first judgment of Nugent v. Stofella, which
This cause is remanded to the superior court of the state of Arizona, in and for Pima county, with directions to modify the judgment of the district court of Pima county, so that the interest on the judgment in favor of the defendant Stofella for $15,700 shall date from May 15, 1905, and not from January 9, 1905, and as so modified the judgment is affirmed.
CUNNINGHAM and ROSS, JJ., concur.