Jackson v. Lebanon Reservoir & Ditch Co.

CUNNINGHAM, J. (After Stating the Facts as Above).— The contention of the appellant that she was without knowledge of her status as a. party plaintiff in the main case is without merit. The citation issued brought her before the court, and gave the court jurisdiction over her with equal effect to that of service of summons. By appearing and answering the citation, she submitted her person and her rights involved in that action to the jurisdiction of the court. By her answer she does not attempt to dispute the facts charged against her in the petition and citation. The whole controversy raised by her in answer to the citation consists of the assertion that she was never legally brought before the court prior to the time of making return to the citation. The trial court decided otherwise, and properly. Becoming satisfied from the evidence that the facts stated in the application are true, and not being denied by respondent, the court made the order complained of, modifying the decree. The appellant [447] has not pointed out wherein her rights have been prejudiced by the order. The order overruling the demurrer, the order denying a new trial, and the order modifying the original decree are assigned as error. The appellant relies upon the taking of an appeal by the defendants in the original case as an act depriving the trial court of jurisdiction to make the order modifying the decree. The contention seems to be that, after said defendants gave notice of appeal from the principal decree, the trial court lost all power over the decree to modify its terms. The decree was made April 11, 1916, and the appeal was perfected by giving notice of appeal on the fourteenth day of September, 1916, and by filing an appeal bond on October 10, 1916. The application for a citation to this respondent was filed September 20, 1916, before the said appeal was perfected. The said appeal as perfected did not have the effect of superseding the decree; hence the trial court did not lose jurisdiction over the same, either by operation of law, by act of the parties appealing, nor in fact, as the court expressly retained jurisdiction of the matter upon the face of the decree, for the purpose of enforcing the equities of the parties. The appeal in this case is from a final order affecting a substantial right of the appellant, made upon a summary application in an action after judgment, and in order to become effective the appeal must have been perfected within 60 days after the said order was made. Paragraph 1233, Civil Code of Arizona, 1913. The order was made November 21, 1916. Notice of appeal was given on the eleventh day of January, 1917, and the bond on appeal was not filed until the third day of March, 1917, a period of 100 days after the order was made. In order to effect an appeal “the party appealing shall also, within the time in which the appeal may be taken, file an appeal bond, or undertaking. ...” Paragraph 1236, Civil Code of Arizona, 1913. The filing of an appeal bond in cases where a bond of appeal is required is jurisdictional. Thomas v. Speese, 14 Ariz. 556, 132 Pac. 1137. The appellees contend that, because the appellant has failed to perfect her appeal by filing an appeal bond within 60 days, as shown by the record, the appeal must be dismissed. That contention must be sustained. FRANKLIN, C. J., and ROSS, J., concur.