Willis v. Ivy, Civil No. 1383

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Civil No. 1383 | Ariz. | Jun 12, 1914

Lead Opinion

FRANKLIN, C. J.

Judgment was rendered in the court below on July 19, 1913, and on September 20, 1913, a motion for a new trial was denied, at which time notice of appeal to the supreme court was given. A supersedeas bond was filed on September 27, 1913.

The1 certificate of the clerk of the court below shows these facts, and also that, subsequent to the filing of the supersedeas bond, no other steps have been taken to bring the case to this ■court by appellant. The appellant has not appeared and made any counter showing.

While, in form, the motion of the appellee in this court is to affirm the judgment on a short transcript, that method of *121disposing of such cases has been abolished by the legislature. We shall, however, treat the motion to affirm as a motion to dismiss the appeal for want of prosecution. The idea is that successful parties are entitled to the fruits of litigation, and that they may not be denied this right, unless the losing party, with reasonable diligence and in the method prescribed by law, prosecutes his appeal to this court. We are of opinion that this appeal has been taken for delay, and that there was no sufficient cause for taking said appeal.

It is ordered that said appeal be docketed in this court, and that said appeal be, and it is hereby, dismissed. The judgment of the court below not being one for the recovery of money, it is further ordered and adjudged, in accordance with paragraph 1272, Revised Statutes of Arizona of 1913, Civil Code, that the appellee be, and he hereby is, awarded damages in the amount of $50; said amount being deemed proper in this case as damages for a frivolous appeal.

ROSS, J., concurs.

Dissenting Opinion

CUNNINGHAM, J.,

Dissenting in Part.—I dissent from the order imposing a penalty in this ease for the same reasons expressed by me in cause No. 1393, Nienstedt v. Dorrington, post, p. 121, 141 P. 569" court="Ariz." date_filed="1914-06-12" href="https://app.midpage.ai/document/nienstedt-v-dorrington-6474151?utm_source=webapp" opinion_id="6474151">141 Pac. 569.