Eaton Fruit Co. v. California Spray-Chemical Corp.

102 Ariz. 129 (1967) 426 P.2d 397

EATON FRUIT COMPANY, Shannon Tomlinson and Dick Eaton, dba Eaton Cattle Company, Appellants,
v.
CALIFORNIA SPRAY-CHEMICAL CORPORATION, Appellee.

No. 8557.

Supreme Court of Arizona, In Banc.

April 13, 1967.

Jennings, Strouss, Salmon & Trask, Phoenix, for appellants.

Ryley, Carlock & Ralston, Phoenix, for appellee.

PER CURIAM.

Appellee, California Spray-Chemical Corporation, on February 17, 1967, moved this Court for an order dismissing this appeal based on these facts; viz., on April 6, 1964, a written judgment was signed and filed in the trial court; on the same day, a motion for new trial was filed; thereafter, on April 13, 1964, the court below took the motion for new trial under advisement and, on May 18th, by minute entry order, denied appellant's motion for new trial; thereafter, on July 9, 1964, more than sixty days after the entry of the written judgment but less than sixty days after the minute entry order denying the motion for new trial, the notice of appeal was filed.

The minute entry order denying a motion for new trial is not an appealable order because it was not signed by the judge and filed with the clerk of the court, State v. Birmingham, 96 Ariz. 109, 392 P.2d 775, and the notice of appeal from the minute entry order was ineffective to confer jurisdiction to consider the merits of the appeal. Appellant, however, suggests that the appeal be not dismissed but suspended pending correction of the record in the court below.

It is therefore ordered that this appeal be suspended pending application by appellant in the superior court for a formal written order denying its motion for a new trial. The superior court is authorized to enter a formal written order as an order in furtherance of the appeal, and when entered, the clerk of the superior court is directed to supplement the record by transmittal thereof to the clerk of the Supreme Court in accordance with the prevailing rules governing appeals.

It is further ordered that upon receipt by the clerk of the Supreme Court of the formal written order, the appeal will be considered as reinstated without further action by this Court.

BERNSTEIN, C.J., McFARLAND, V.C.J., and STRUCKMEYER, UDALL, and LOCKWOOD, JJ., concur.