Appendix — Cocke v. James Stewart Co.

Su; AL: Court. U, &

fFlLED

OCT 10 1975

—- Oewee ee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No. 45-556 {

FRANCIS M. COCKE, Petitioner,

Vv.

JAMES STEWART COMPANY, et al, Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

(Six Volumes)

RICHARD L. THOMPSON

132 South Central Ave.

Suite 7

Phoenix, Arizona 85004

(602) 254-7331

Counsel for Petitioner

VOLUME V

Pages 395 - 500

395

IN THE SUPERIOR COURT

: OF THE STATE OF ARIZONA

. IN AND FOR

THE COUNTY OF MARICOPA

#

JAMES STEWART Co., an

Arizona corporation;

M. SETH HORNE and

MAURINE D. HORNE, his

wife,

Plaintiffs,

vs.

FRANCIS M. COCKE, a

divorced man; and JOAN

H. COCKE, a divorced

woman,

NO. C=-222472

DEFENDANT F. M.

COCKE'S REPLY TO

PLAINTIFF BUYERS'

RESPONSE OF OCTO-

BER 12, 1972 AND

TRANSAMERICA'S

RESPONSE OF OCTO-

BER 24, 1972 TO

F. M. COCKE'S

MOTION TO VACATE

Les aed eh

Defendants,

(The Summary

Judgments in Favor

of Transamerica

and Buyers)

vs.

TRANSAMERICA TITLE

INSURANCE COMPANY OF

ARIZONA, an Arizona

corporation,

Filed:

November 7, 1972

Additional Defendant

on Counterclaim

of F. M. Cocke.

i de de de de de ee ee ee ee ee ee oe a a a oe a a a a a

INASMUCH AS Plaintiff Buyers have now

moved the Court to enter its order deny-

ing defendant F. M. Cocke's Motion to

Vacate the separate summary judgment of

November 10, 1970, in favor of Trans-

america, and Transamerica has filed its

Response to F. M. Cocke's Motion to Vacate

the separate summary judgment of September

29, 1972, in favor of Buyers, and states

396

that the issues sought to be raised by F. M.

Cocke's Motion are "without question res

judicata," F. M. Cocke replies herein to

Buyers' Response filed October 12, 1972,

and to Transamerica's Response filed

October 24, 1972.

In his Motion to Vacate, F. M. Cocke

points out that Buyers' failure to join

the escrow agent, in Buyers' Complaint For

Specific Performance of the escrow agree-

ment, left the Court without jurisdiction

Over the subject matter of such complaint,

requiring its dismissal under Rule of Civil

Procedure 12(i)3, as amended. Transamerica

now Claims that if is res judicata that the

Court had jurisdiction over Buyers' Com-

plaint, in Transamerica's absence.

The Motion to Vacate also points out

that both of the separate summary judgments

violate Rules 19(a), 19(c), 13(i), and

56d, and also violate the well settled

rule of law that a court cannot rewrite a

contract but must enforce it as written

Or not at all. The Motion to Vacate also

states that the judgment of September 29,

1972, for Gamages, is in conflict with

Rule 52(a), and that the judgment of Novem-

ber 10, 1970, was premature.

As stated in 6 Moore's Federal Prac-

tice, Section 54.34(2-2), Multiple Parties

Actions after the 1961 Amendment to 54(b),

at page 563:

The trial court cannot by certi-

fication make final and appealable

a ruling that is not final and

appealable under 28 USC 1291.

Sears, Roebuck & Co. v. Mackey

(1956) 351 US 427, 437, 76 S.Ct.

895, 901, 100 L.ed 1297, 1307,

397

22 FR Serv 54b.4, Case 6, citing

Treatise; Hamman v. United States

(CA9th, 1968) 399 F.2d 673, 674.

See ARS Section 12-2101, as amended.

In Caruso v. Superior Court, Pima

County (1966) 100 Ariz. 167, 412 P.2d

463 (headnote 6):

Acts in excess of a court's juris-

diction for which a writ of pro-

hibition might issue include acts

exceeding the power of a court as

defined by the Constitution,

statute or court rules followed

under the doctrine of stare de-

cisis, and acts where the lower

tribunal has abused its discre-

tion.

In Rio Grande Irrigation & Coloniza-

tion Co. v. Gildersleeve, 174 US 603, 19

S.Ct. 761, 43 L.ed 1103, the court said

(L.ed, p. 1105):

As was said in Thompson v. Hatch,

3 Pick. 512:

A duly authorized rule of court

has the force of law, and is

binding upon the court as well

as upon parties to an action,

and cannot be dispensed with to

Suit the circumstances of any

particular case. . . .The courts

may rescind or repeal their rules,

without doubt; or, in establish-

ing them, may reserve the exer-

cise of discretion for particular

cases. But the rule once made

without any such qualification

must be applied to all cases

398

which come within it, until it is

repealed by the authority which

made it.

Where the question of jurisdiction is

one of law, a court cannot by an erroneous

decision acquire jurisdiction which it has

not, or divest itself of jurisdiction

which it has. Risley v. Phoenix Bank,

83 NY 318, 38 Am.R. 421, aff. 111 US 125,

28 L.ed 374.

THE 14TH AMENDMENT TO

THE U.S. CONSTITUTION

In Barbier v. Connolly, 113 US 27,

28 L.ed 923, 5 S.Ct. 357, the court said:

The 14th Amendment, in declaring

that no State "Shall deprive any

person of life, liberty or property

without due process of law, nor deny

to any person within its jurisdic-

tion the equal protection of the

laws," undoubtedly intended, not

only that there should be no arbi-

trary deprivation of life or liberty

Or arbitrary spoliation of property

but that equal protection and

security should be given to all

under like circumstances in the

enjoyment of their personal and

Civil rights; that all persons

Should be equally entitled to

pursue their happiness and acquire

and enjoy property; that they should

have like access to the courts of

the country for the protection of

their persons and property, the

prevention and redress of wrongs

and the enforcement of contracts;

399

In Northern Pac. Ry. Co. v. Kurtzman

(1897) 82 F. 241, the court said:

I recognize the absolute correct-

ness of the proposition that the

federal courts are forbidden by

express. provisions in the laws

enacted by congress to issue in-

junctions to stay proceedings in

any court of a state, but that

principle is not applicable where

the suit in the federal court is

a direct attack upon a judgment

rendered in a state court for the

purpose of nullifying such judg-

ment, upon the ground that the

same was obtained by fraud, or

because the court in which such

judgment appears of record had

no jurisdiction to render the

same. In the exercise of their

general equity powers, the cir-

cuit courts of the United States

have always been free to grant

relief of this nature in cases

coming within their jurisdiction.

Galpin v. Page, 18 Wall. 351-375;

Pennoyer v. Neff, 95 U.S. 714-

748; Arrowsmith v. Gleason, 129

U.S. 86-101, 9 Sup. Ct. 237;

Marshall v. Holmes, 141 U.S.

589-601, 12 Sup. Ct. 62.

In Earle v. McVeigh, 91 U.S. 503, 23

L.ed 398, the court said:

Want of jurisdiction is a matter

that may always be set up against

a judgment when sought to be en-

forced, or where any benefit is

claimed under the judgment, since

want of jurisdiction makes the

judgment utterly void and un-

available for any purpose.

|

400

In Old Wayne Mutual Life Assn. v. McDonough,

204 U.S. 8, 51 L.ed 345, 27 S.Ct. 236, the

court pointed out that where it appears

from the record that the court was without

jurisdiction, the action of the court is

void, and that no judgment of a court is

due process of law, if rendered without

jurisdiction in the court.

Since it is well settled that the

federal courts have the last word on

federal questions, such as due process of

law and equal protection of the laws, it

cannot now be established that the issues

raised in C-222472 by F. M. Cocke are res

judicata as claimed by Transamerica.

Accordingly, defendant F. M. Cocke

again urges the Court to vacate the two

judgments, for want of jurisdiction.

Respectfully submitted this

7th day of November, 1972.

By /s/ L. Alton Riggs, Jr.

L. Alton Riggs, Jr.

Attorney for Defendant

F. M. Cocke

fades».

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

FRANCIS M. COCKE,

Appellant and

Cross-Appellee,

vs.

1 CA-CIV 2306

DEPARTMENT A

JAMES STEWART CO., an

Arizona corporation; M.

SETH HORNE and MAURINE

E. HORNE, his wife, MARICOPA COUNTY

SUPERIOR COURT

Appellees and NO. C=222472

Cross-Appellants.

APPELLANT

FRANCIS M. COCKE, F. M. COCKE'S

REPLY TO

Appellant, APPELLEES '

MOTION TO DISMISS

Vs.

Filed:

March 12, 1973

TRANSAMERICA TITLE IN-

SURANCE COMPANY OF

ARIZONA, an Arizona

corporation,

Appellee.

mm ee eee ee eee ee ee ee

By way of Reply to the Motion To Dis-

miss Appeal filed March 7, 1973 by Appellees

Horne and James Stewart Co., F. M. Cocke

respectfully submits the following:

The crux of the matter reached by

appellees at page 3, lines 10 and ll, and

again at page 4, lines 27-31, of their

Motion to Dismiss, is whether a motion to

P<

402

vacate qualifies as a motion to alter or

amend, under Arizona's present Rule 59(1).

It appears that none of the cases

cited by appellees are in point on this

first issue. Their statement at page 4,

lines 2-4, apparently attributed to the

discussion in Ohio Fuel Gas of the dis-

tinction between a "vacated" and a "sus-

pended" judgment, should not be inter-

preted to say that it is the motion which

has utterly no effect for reason thereof.

Arizona adopted as Rule 59(1) the

present Federal Rule 59(e), and Moore's

Federal Practice discusses the point at

issue here at page 3880 of Volume 6A:

Although the motion under (e) is to

"alter or amend" the judgment, it

would perhaps be more accurate to

say that subdivision (€) deals

with motions to alter, amend, or

vacate. It would be an unreason-

ably narrow position to hold that

a judgment may be modified and

amended only up to the thin line

where it amounts to a vacation of

the judgment altogether. The

district court formerly had the

inherent power to vacate any of

its judgments during term time.

The Rules were merely intended to

abrogate term time as having any

effect on the power of the district

court over its final judgments; not

to withdraw power which it formerly

had to vacate a final judgment, but

to require that any action of this

kind must be taken in response to

a proper motion made not later than

10 days from the entry of the judg-

ment or, if the court acts on its

403

own initiative, that it do so not

later than 10 days after the entry

of the judgment. The cases have

wisely recognized the power of the

court to vacate and set aside a

judgment under 59(e).

After the court has ruled on a 59(e)

motion, it should not thereafter

reconsider that ruling on a motion

made later than 10 days after the

entry of judgment.

At page 3, lines 12-18, of their Motion,

appellees raise a second issue by seeking to

establish that F. M. Cocke's Motion to Va-

cate contained no defense on the merits,

but raised only jurisdictional issues, in

each and every paragraph.

It has long been the rule in both state

and federal courts in suits to vacate a

judgment for want of jurisdiction, usually

filed when some benefit is claimed there-

under, that the complainant must show that

under the facts as alleged he is entitled

to substantial relief, in order that the

court's time will not be wasted. It appears

that the Motion To Vacate asserts several

valid defenses, and recites undisputed

facts to support them. A copy of the

Motion [filed Oct. 10, 1972 (A. )] is

attached hereto.

As part of the agreement the enforce-

ment of which is the subject matter of this

litigation, the Motion quotes, among others,

cancellation paragraphs 16, 17 and 18

(pages 2 and 3), with emphasis on the man-

datory and self-executing clause "these

instructions shall become cancelled" in 18.

Beginning at page 5, line ll, the Motion

recites the filing, as provided by paragraph

404

16, of F. M. Cocke's 13-day notice of in-

tention to cancel upon Buyers' (Appellees

Horne and the Company) continued failurto

comply, lists their new demands and points

to their subsequent affirmance thereof,

asserts that they did not even attempt to

comply within the 13 days, that they have

never retracted their new demands, and

that their insistence that the new demands

be met as a condition to close of escrow

constituted, without more, repudiation of

the agreement.

At page 4, the Motion to Vacate quotes

cancellation paragraph 24, with emphasis on

the mandatory clause "all documents execu-

ted by one party only on deposit with the

Escrow Agent shall be returned." Under

paragraph 24 return of the deeds as docu-

ments executed by one party only, instead

of delivery to Buyer, is mandatory in the

event of the escrow agent's inability or

unwillingness to comply with the escrow

instructions, for any reason other than

previous cancellation under paragraph 18.

Obviously, Seller and Buyer here delegated

to Transamerica, and it assumed, the right

and duty as escrow agent to comply with the

escrow instructions only upon the express

condition that if it failed to comply,

either because it was unable or unwilling,

the failure put an end to the mutual rights

and obligations of Seller and Buyer under

the agreement, Transamerica would collect

its charges, and any extra money and the

deeds would be returned. The agreement

itself, so cancelled, would be retained.

The end of the agreement upon noncompli-

ance by the escrow agent is independent of

compliance or noncompliance by Seller or

Buyer, and requires no notice or demand to

Or by anv party. Unwillingness of Trans-

america as title insurer to issue any of

:

4044

the title policies puts an end to the agree-

ment in the same manner as its failure as

escrow agent to comply with the instruct-

ions.

At page 6, lines 6-9, immediately below

Item 5 of the list of Buyers’ new demands,

the Motion To Vacate recites the undisputed

fact that by letter of March 10, 1969, the

escrow agent gave written notice to Sellers

that Buyer had done everything required of

him to close the escrow. Obviously, the

escrow agent had chosen to follow Buyers'

new instructions, in violation of the agree-

ment and escrow instructions in the escrow

agent's file since October 9, 1968 (page l

of Motion). This notice was a second

attempt by the escrow agent to secure a

deed to Parcels 1A and 2A for the Buyers,

the first having failed five days earlier,

as recited beginning at page 4, line 20,

of the Motion, and clearly established its

inability or unwillingness to comply with

the escrow instructions.

In Secrist v. State of Arizona (1965)

2 Ariz. App. 240, 407 P.2d 781, this Court

held that a motion filed on 27 April, 1959,

by the Attorney General of Arizona, to va-

cate on jurisdictional grounds adverse

judgment entered 2 July, 1947, and which

motion also asserted a valid defense, was

a valid motion, and its denial appealable

within the meaning of Rule 73(b), Rules of

Civil Procedure, and Section 12-2101 A.R.S.

(the Section 21-1702 A.C.A.). However,

the State having failed to appeal the order

denying its motion, the judgment of 2 July,

1947, was nNeld res adjudicata as to the

parties thereto.

It appears that appellees’ Motion To

Dismiss should be denied.

40!

Respectfully submitted this

12th day of March, 1973.

By /s/ L. Alton Riggs, Jr.

L. Alton Riggs, Jr.

1540 E. University, Suite

Mesa, Arizona 85202

Attorney for Appellant

FRANCIS M. COCKE

200

——e a

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

FRANCIS M. COCKE,

Appellant and

Cross-Appellee,

Vv.

JAMES STEWART CO., an

Arizona corporation; M.

SETH HORNE and MAURINE

D. HORNE, his wife,

Appellees and

Cross~-Appellants.

FRANCIS M. COCKE,

Appellant,

Ve

TRANSAMERICA TITLE IN-

SURANCE COMPANY OF

ARIZONA, an Arizona

corporation,

Appellee.

The motion to dismiss of appellees

Horne and James Stewart Co.

et de ee ea

1 CA-CIV 2306

DEPARTMENT A

406

MARICOPA County

Superior Court

No. C-222472

O-R-D-E-R

Filed:

May 17, 1973

and the

reply thereto by appellant Francis M.

Cocke have been considered by Judges

This does not

constitute a permanent assignment of this

Donofrio, Ogg and Stevens.

appeal to these Judges,

to this Depart-

ment, or to this Division of the Court of

Anpeals. It appearing to the Court that

the appellant's notice of appeal from the

407

judgments and orders as to appellees Horne

and James Stewart Co. is untimely,

IT IS ORDERED dismissing appellant's

appeal in its entirety as to appellees

Horne and James Stewart Co.

In light of the above order, the

motion of appellees Horne and James

Stewart Co. for an extension of time to

file the answering brief is mooted.

/s/ Francis J. Donofrio

FRANCIS J. DONOFRIO,

Presiding Judge, Department A

a Weta Orne _—

408

COURT OF APPEALS

STATE OF ARIZONA

DIVISION I

FRANCIS M. COCKE, )

)

Appellant and) 1 CA-CIV 2306

Cross-Appellee, )

) DEPARTMENT A

Vv. )

) MARICOPA COUNTY

JAMES STEWART CO., an ) Superior Court

Arizona corporation; M.) No. C-222472

SETH HORNE and MAURINE )

D. HORNE, his wife, ) F. M. COCKE'S

) REPLY TO TRANS-

Appellees and) AMERICA'S MOTION

Cross-Appellants,) TO DISMISS APPEAL

) AS TO TRANSAMERICA

Vv. )

)

TRANSAMERICA TITLE IN- ) Filed:

SURANCE COMPANY OF ) June 4, 1973

ARIZONA, an /.rizona )

corporation, )

)

)

Appellee.

)

As his reply to Transamerica's Motion

To Dismiss, appellant F. M. Cocke submits

the following:

It should not be overlooked that the

trial court refused to recognize the

existence of the cancellation paragraphs

16-22 and 24 contained in the fine print

portion of the escrow agreement, nor did

it see fit to recognize the existence of

the documents and new demands contained

in Buyers’ letter to the escrow agent

dated March 5, 1969. The effect of the

cancellation provisions, when considered

ee

———

409

along with Buyers' letter and with the

escrow agent's letter of March 10, 1969,

which notified Sellers that by deposit

into escrow of Buyers' documents and new

demands Buyers had done everything re-

quired of them to close the escrow, is

decisive of this case. This issue has

been repeatedly raised by F. M. Cocke

during the four years that the enforcement

of the agreement has been before the

courts. However, the judges earlier in-

volved in the case have so far not made

a direct ruling on this decisive issue.

A copy of the agreement is in Volume XII

of the Abstract, Folio II; copies of the

escrow agent's and Buyers' letters are

in Folio IV. The documents and demand

contained in Buyers' letter are discussed

in appellant's Opening Brief, beginning

at page 16. The Brief is attacked in the

Motion To Dismiss, particularly beginning

at page 7, line 28, so permitting appro-

priate rebuttal by appellant.

In the Motion To Dismiss, Transamerica,

even in its claim of violation of Supreme

Court Rule 5(b) (discussed below), has

reached for its princ’»al support to the

very judgments of the trial court, and the

decision of the Court of Appeals, the

validity of which is challenged by the

appeal.

Beginning at the top of page 7, under

the heading "Res Judicata," Transamerica

States that it has been unable to uncover

a single contention relating to Trans-

america which has not or could not have

been specifically raised in the previous

appeal, and quotes the seven questions

framed by the Court in that case, which

were substituted for the questions pre-

sented by the opening brief. The actual

410

questions presented were as follows:

l.

Whether the escrow officer's notice

on Mar. 10, 1969, to all parties

to the escrow that Buyer had done

everything required of him to close

the escrow constituted breach of

trust and breach of the escrow

agreement.

Whether the note and mortgage were

actually delivered into escrow by

F. M. Cocke, and whether the escrow

could close without its return or

a cash deposit to replace the

extra $20,000 represented by the

note and mortgage.

Whether Transamerica's claim, that

F. M. Cocke lost title to the

triangle by reason of the Starley

gquit-claim deed, was valid.

Whether Buyers repudiated the con-

tract for sale and purchase, so

terminating or cancelling the

escrow, by their attempt to secure

F. M. Cocke's signatur to the

warranty deed to land not part of

any contract and to which he did

not have title, and by their in-

struction demanding that such deed

be signed as a condition to going

ahead with the purchase contract.

Whether the escrow was cancelled

by Mar. 20, 1969, in accordance

with the notices of intention to

cancel and paragraphs 7, 16-23,

and 25 of the escrow instructions

by failure of Buyers or Trans-

america to comply with the escrow

instructions.

a

411

6. The effect of paragraph 24 in the

event of inability or unwilling-

ness of escrow agent to comply

with escrow instructions, or un-

Willingness of Transamerica to

issue its title policy.

7. Whether Transamerica incurred

liability by its failure to return

either prior to or upon the filing

of Buyers' Complaint on April 22,

1969, the deeds and releases held

in escrow, and the amount of any

such liability.

8. The question of (1) the force of

paragraphs 8, 9, and 10 upon and

subsequent to any breach of trust

or of the escrow agreement b

escrow agent, (2) their effect

upon and subsequent to the filing

of Buyers' Complaint, and (3)

their force and effect as affected

by public policy.

(emphasis added)

As can readily be determined by comparison

with the seven questions quoted by Trans-

america at page 7, the underlined portions

of the eight actual questions presented

for review were omitted.

In the first question actually pre-

sented for review, the portion deleted

was whether the escrow officer's notice

of Buyers’ compliance constituted breach

of the escrow agreement, or escrow in-

structions. Question 6, concerning the

effect of paragraph 24 in the event of

the inability or unwillingness of the

escrow agent to comply with the escrow

instructions, or the unwillingness of

412

Transamerica to issue its title policy, was

deleted in its entirety. The decisive

issue of whether the escrow agent's notice

of Buyers' compliance put an end to the

agreement under paragraph 24 by establish-

ing the escrow agent's inability or un-

willingness to comply with the instruc-

tions was thus not met.

Through its deletion of the under-

lined portion of Question 2 the Court

failed to meet the issue of whether the

escrow could close without the return of

the $40,000 note and mortgage or a cash

deposit of the extra $20,000 represented

thereby. This $20,000 was a substantial

part of the $84,000 deficiency in Buyers'

mortgages, which they insisted, and still

insist, be placed of record along with

the deeds to Buyers before the other

$64,000 of the deficiency is corrected

or paid. Buyers instructed the escrow

agent in their letter dated March 5, 1969,

that the $64,000 was not to be paid at all

unless and until the deeds included deeds

to Parcels 1A and 2A. These parcels were

not included in the agreement, or in any

other agreement.

Question 3 concerned the small Tri-

angle of land in F. M. Cocke's Parcel 2.

In his Statement of the Case (page 13 of

the 1971 Opening Brief) he pointed to the

undisputed fact that Transamerica refused

to insure title to Parcel 2 on its claim

that Cocke was divested of title to the

Triangle by a neighbor's gquit-claim deed.

In his argument on Question 3 such claim

was effectively rebutted. Transamerica's

unwillingness to insure the title, espe-

cially since not justified, obviously put

an end to the agreement under paragraph

24, but by the deletion of Question 3

Diiiiiscciccs

413

this issue was not met, Question 6 being

also omitted.

The issue of whether Buyers repudiated

the contract by their attempt to secure

and their written demand for deeds to the

extra land, and the issue of whether the

agreement was cancelled by Buyers' failure

to comply with the instructions, were

raised by Questions 4 and 5. Both of

these questions were omitted, and neither

of the issues was met.

Question 8(1) raised the issue of

whether paragraphs 8, 9 and 10 could be

enforced upon and subsequent to any breach

of the escrow agreement by the escrow

agent. By the omission of Question 8(1l),

and the omission of Questions 4, 5 and 6,

the issue of whether paragraphs 8, 9 and

10 could be enforced after the entire

agreement was repudiated, or cancelled

under paragraphs 16-22, or cancelled

under paragraph 24, was not met.

From the above, and from an examina-

tion of the reported decision in Cocke v.

Transamerica, 1972, it is manifest that

the issues upon which the present appeal

is based were not ruled on in that decis-

ion, and are not res judicata.

In support of Transamerica's position

that the attorney fees were properly col-

lected by the enforcement of paragraphs 8,

9 and 10 without regard to other provis-

ions of the agreement, the Memorandum at

page 2, line 9, states that the conten-

tions contained in F. M. Cocke's Response

to Transamerica's Motion to Modify Judg-

ment (Abstract, p. 895) have been fully

disposed of by the written opinion in

Cocke v. Transamerica, 1972.

as be

Poe vie

414

The Response among other things point-

ed out that Transamerica was back in the

trial court seeking final enforcement of

only paragraphs 8, 9 and 10 of the lengthy

agreement; that the rest of the agreement,

including the cancellation provisions, had

not been effectively deleted by either the

trial or appellate courts, since that was

beyond their jurisdiction; that want of

jurisdiction may always be set up against

a judgment when sought to be enforced;

that jurisdiction of an appellate court

On review is limited to correcting the

error of the trial court in entertaining

the action where without jurisdiction; and

that no judgment of a court is due process

of law if rendered without jurisdiction.

The Response further stated that the

escrow agreement still stood as agreed to

by Sellers, Buyers and Transamerica, along

with the other provisions and instructions,

and that the escrow agent was still bound

to Buyers and Sellers to either close the

escrow and deliver the deeds and title

policies to Buyers, or cancel the escrow

and return Sellers' deeds. The Response

also stated that the trial court had

granted specific performance, and that

specific performance must include perform-

ance by the escrow agent of its duty to

close or cancel the escrow. It was

further pointed out that to enforce per-

formance by the escrow agent the court

must have jurisdiction over it, and that

without such jurisdiction the court would

be left without the power to grant the

relief sought by Buyers' Complaint, so

requiring its dismissal under Rule 12(i)3,

as amended.

The Response also pointed out that

Transamerica's Motion was premature, and

415

that it should have awaited a final judg-

ment which specified whether the escrow

agent was to close or cancel the escrow,

with findings of fact and conclusions of

law as to whether or not the documents

and demands contained in Buyers' letter

dated March 5, 1969, constituted compli-

ance by Buyers.

Clearly, in the present circumstances

of this case, these contentions will not

be "fully disposed of" in the manner

claimed and hoped for by Transamerica

unless and until it is established that

the trial court had jurisdiction to erase

the cancellation provisions from the

agreement, and to erase Buyers' new

demands, and the escrow agent's letter

approving such demands, from the record.

Certainly, they were not disposed of by

Cocke v. Transamerica, 1972, since the

issues raised by such contentions were

not met, even if raised, in that earlier

decision.

At page 4, line 13, the Memorandum

states that in the Response as well as in

the present Opening Brief, Cocke continues

to assert that the Court cannot enforce

one provision of the contract without en-

forcing all of the provisions, even though

they are not involved in the litigation.

It is true that Cocke has asserted,

and will continue to assert, that para-

graphs 8, 9 and 10 became unenforceable

in March, 1969, at least three months

before Transamerica incurred any attorney

fees, since such paragraphs were cancelled

along with the rest of the agreement by

repudiation, by cancellation under para-

graphs 16-22, or by cancellation under

paragraph 24. Transamerica's claim that

416

the cancellation provisions are not in-

volved in this litigation, in view of the

undisputed fact of Buyers' new demands and

the undisputed fact of the escrow agent's

approval thereof, is without foundation.

At page 4, lines 18-20, of the Memo-

randum, Transamerica challenges statements

made in the present Opening Brief at page

34. These statements are:

In these circumstances, it became

obvious four years ago that a final

determination binding on F. M.

Cocke and Buyers, of whether it

was solely Buyers' failure to re-

tract their new demands that put

an end to the agreement by can-

cellation under paragraph 18 or

by repudiation, could not be made

in the absence of Transamerica,

inasmuch as such cancellation or

repudiation did not take place

before March 18, 1969, and the

escrow agent's letter approving

Buyers' new demands was written

March 10th.

It was equally obvious that a

final determination binding on

F. M. Cocke and Transamerica, of

whether Transamerica put an end

under paragraph 24 to Buyers'

rights under the agreement by

the escrow agent's letter of

March 10, 1969, could not be

made in the absence of Buyers.

It is elemental that Buyers would not be

bound by a judicial determination to which

they were not parties.

417

At page 5, lines 10 and 1l, of the

Memorandum, Transamerica attributes its

Own statements to page 2 of the present

Opening Brief. The statements of which

Transamerica complains begin at the

bottom of page 1 of the Brief:

The agreement is still in the

executory stage. Transamerica

has remained unaBle or unwilling

to return the deeds and money to

depositors in accordance with the

escrow instructions agreed to by ~

all parties, and also has remained

unwilling to issue its title poli-

cies, close the escrow, and deliver

the deeds and money in accordance.

with five new written demands re-

ceived from Buyers on March 7,

1969. Title to Parcel 2, about

72 acres, and an undivided half- ,

interest in Parcel 1, containing

about 49 acres, still remains in

F. M. Cocke, who is in possession

of and farming both parcels.

Title to the other half-interest

in Parcel 1 remains in First

National Bank of Arizona, Trustee.

Joan H. Cocke is merely life

tenant of the trust; the three

Cocke daughters are the remainder-

men. Unless it can be established

that some court had or has the

power to alter the terms of de-

posit into escrow of the trustee

Bank's deed, which terms include

Schedule A and the fine print

Cancellation paragraphs 16-22

and 24, it appears that the long-

litigated question of whether the

life tenant is entitled to the

proceeds is moot. There are to

be no proceeds because such terms

418

of deposit, unless successfully

altered as attempted, plainly re-

quire that the Bank's deed be

returned to it.

Transamerica long ago admitted that the

proposed payment to Joan H. Cocke would

violate the trustee Bank's escrow instruc-

tions (Kavanaugh Deposition, cross-examina-

tion by Transamerica's counsel, Feb. 27,

1970), and this Court in Higgins v. Kittle-

son (1965) 1 Ariz. App. 244, 401 P.2d 412,

pointed out:

The law is well settled that an

escrow agent acts in a fiduciary

Capacity and must conduct affairs

with which he is entrusted with

scrupulous honesty, skill, and

diligence. Tucson Title Ins. Co.

v. D’Ascoli, 94 Ariz. 230, 383

P.2d 119 (1963). That he (Escrow

Agent) is a trustee and must act

in accordance with terms of the

escrow agreement. Malta v.

Phoenix Title & Trust Co., 76

Ariz. 116, 259 P.2d 554 (1953).

And that if he (Escrow Agent)

delivers a deed in violation

of the terms of deposit that the

deed conveys no title to grantee.

Hixon v. Davis, 46 Ariz. 543, 52

P.2d 1166 (1935), D'Ascoli (supra).

(emphasis added)

At page 2 of the Memorandum, Trans-

america alleges failure of the Statement

of Facts to comply with Rule 5(b). As

its principal objection Transamerica, at

lines 21-25, states:

a

419

In fact, the two separate and

d:stinct actions are again so

intertwined and intermixed that

it is exceedingly difficult, if

not impossible, to ferret out

the portions apparently appli-

cable to Transamerica.

The escrow agreement itself establishes

that it was Transamerica's own fine print

cancellation provisions, particularly

paragraph 24, which intertwined and inter-

mixed the rights and obligations of F. M.

Cocke, Buyers, the escrow agent and the

title insurer. The reservation to the

escrow agent and to the title insurer of

the right to put an end to the agreement

at will took Transamerica as escrow agent

out of the traditional role of a passive

and disinterested stakeholder.

Claiming a second failure to comply

with Rule 5(b), beginning at page 2, line

26, of the Memorandum, Transamerica states

that the Questions for Review are likewise

defective. At the top of page 3 of its

Memorandum, Transamerica designates "The

Effect of the Cancellation Provisions" as

a second Question for Review, and desig-

nates "Due Process of Law as Specified

by the Rules of Procedure" as a third

question. At page 3, line 6, Trans-

america states:

Hence, the mere statement of

the questions drafted by appel-

lant show their total inadequacy

to advise the Court of the issues

involved.

However, the first quoted phrase is a

heading for argument asserting the effect

of the cancellation provisions, and the

420

second is a heading for argument asserting

violation of due process of law as speci-

fied by the Rules of Procedure.

Upon the foregoing, it is respect-

fully submitted that Transamerica has

failed to show a material failure to

comply with Rule 5(b), Rules of the

Supreme Court, so as to warrant dismissal,

has failed to establish that the appeal

in any of its aspects is frivolous, and

has failed to establish that the issues

upon which the appeal is based are res

judicata.

In accord with the inclination of

the courts to now relax to some extent

the formalities of pleading, and go to

the merits, in Preston v. Denkins (1963)

94 Ariz. 214, 382 P.2d 686, the Arizona

Supreme Court, sitting en banc, ina

unanimous decision held that the right

to challenge a judgment on the ground

that it is void for lack of jurisdiction

of the parties does not depend upon rules

of court or statute, that a judgment void

for lack of jurisdiction may be set aside

by means of a motion to vacate, and that

an order setting aside an entire judgment

as void does not leave the judgment valid

as against defendants not properly before

the court on the motion to vacate.

Respectfully submitted this

4th day of June, 1973.

By /s/ L. Alton Riggs, Jr.

1540 E. University, Suite 200

Mesa, Arizona 85203

Attorney for Appellant

Francis M. Cocke

421

COURT OF APPEALS

STATE OF ARIZONA

DIVISION I

FRANTis M. COCKE,

Appellant and

Cross-Appellee,

Vv. 1 CA-CIV 2306

JAMES STEWART CO., an DEPARTMENT A

Arizona corporation;

M. SETH HORNE and

MAURINE D. HORNE, his

wife,

MARICOPA COUNTY

Superior Court

No. C-222472

APPELLANT F. M.

COCKE’S REPLY TO

APPELLEE'S MOTION

TO REFER FILE BACK

TO TRIAL COURT

Appellees and

Cross-Appellants,

V.

TRANSAMERICA TITLE IN-

SURANCE COMPANY OF

ARIZONA, an Arizona

corporation,

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Appellee. )

)

Filed: September 13, 1973

Appellant F. M. Cocke respectfully

Submits the following as his Reply to the

Motion of Appellees James Stewart Company,

M. Seth Horne and Maurine D. Horne for an

order referring the file back to the trial

court, insofar as it pertains to said

Appellees, hereinafter called the "Buyers."

As Buyers themselves state at page 2

of their Memorandum, lines 6-10, they seek

an order referring the file in this case,

ee

422

pe ths eae

insofar as it pertains to them, back to

the trial court in order that they may seek

the affirmative assistance of that court

in the enforcement of the judgment entered

September 27, 1972. However, it appears

that Buyers have already sought and re-

ceived assistance.

Attached hereto is a copy of an Order

To Show Cause, signed by trial court Judge

Irvin Cantor on September 7, 1973. and

addressed to Transamerica Title Insurance

Company of Arizona, Appellee herein. The

Order was issued pursuant to Buyers’ Appli-

cation therefor of even date, a copy of

which is also attached, with all Exhibits.

MEMORANDUM

I.

COMPLIANCE BY TRANSAMERICA

WITH JUDGMENT ENTERED SEPTEMBER 27, 1972

1. STATEMENT OF FACTS

At page l, lines 27-30, the Order To

Show Cause orders Transamerica to appear

on September 14, 1973, and show cause:

WHY TRANSAMERICA SHOULD NOT BE ORDER-

ED TO COMPLY WITH THE JUDGMENT ENTERED BY

THE TRIAL COURT ON SEPTEMBER 27, 1972.

The judgment entered on September 27,

1972, is a summary judgment, except as to

the amount of damages awarded to Buyers

for claimed delay, and is the judgment

entered in favor of Buyers on their Com-

plaint For Specific Performance of the

escrow agreement. The filing of such

Complaint in April, 1969, marked the

423

q

5

-

beginning of this extended litigation.

Although Buyers' Complaint (p. 1 of

Abstract) sought at least partial per-

formance by Transamerica bot): as title

insurer and as escrow agent, by demanding

as part of the relief sought that the title

insurance policies be issued and the escrow

be ordered closed, Transamerica has never

been joined in Buyers’ action. Buyers’

Complaint named only the Sellers as de-

fendants, and their action was prosecuted

against only Seller F. M. Cocke. The

judgment entered September 27, 1972, was

entered against only F. M. Cocke.

Transamerica was brought into the

case as an additional defendant on F. M.

Cocke's compulsory Counterclaim, which he

filed along with his Answer to Buyers'

Complaint. The Counterclaim, brought

jointly and severally against Buyers and

Transamerica, sought the return by the

escrow agent of Sellers' deeds by the en-

forcement of cancellation paragraphs 16-22

and 24 of the fine print portion of Trans-

america's printed escrow form. A copy of

the agreement is in Volume XII of the

Abstract, Folio II, and consists of

fourteen legal-size, fold-out pages.

Transamerica's fine print escrow instruc-

tions have been retyped to legible size.

2. TRANSAMERICA IS A REAL PARTY IN

INTEREST

Sellers’ and Buyers’ delegation, by

paragraph 24 of Transamerica's fine print

escrow instructions, to Transamerica as

escrow agent and as title insurer of the

power to put an end to the agreement at

will, independent of compliance or non-

compliance by Sellers or Buyers, took

1 ae nae inns mamaaiile

a

.

~

424

Transamerica as escrow agent out of the

traditional role of a passive and disin-

terested stakeholder, and made it not only

a real party in interest but actually the

dominant party to the escrow contract. It

was long ago established that any person

materially involved in the subject matter

of an action is a real party in interest,

and unless joined in the action cannot be

bound by the judgment. Mosher v. Hiner

(1945) 62 Ariz. 110, 154 P.2da 372, certio-

rari denied 325 U.S. 874, 89 L.ed. 1992,

65 S.Ct. 1554. Even though Buyers have

sought to impose on F. M. Cocke duties

which Buyers and Sellers together delegated

to Transamerica, such as issuing of the

title policies and closing the escrow, the

subject matter of Buyers’ action for speci-

fic performance of the escrow agreement was

and is plainly the enforcement of its

applicable provisions. In view of the

fact that the escrow agent remains in

possession of Sellers' documents and

Buyers’ money, and is liable for damage

suffered by either by reason of any fail-

ure on its part to comply with the escrow

instructions, it cannot be effectively

denied that Transamerica was and is a real

party in interest to such enforcement,

particularly of fine print paragraphs 16-22

and 24, and cannot be bound by the Septem-

ber 27, 1972, judgment against F. M. Cocke,

Since it was not joined in Buyers" action.

II.

LACK OF TRIAL COURT'S JURISDICTION

OVER MATTERS CONNECTED WITH THE CASE

1. JURISDICTIONAL QUESTIONS STILL

BEFORE THE COURT OF APPEALS

é a MP

425

Unlike the Buyers, Transamerica in

its motion to dismiss the appeal did not

question the timeliness of the Notice of

Appeal nor the perfecting of the appeal.

Like the Buyers' motion to dismiss, how-

ever, its motion failed to meet the re-

_ quirements of Supreme Court Rule 7(c), as

required by Rule 7(b) or 7(d), and Rule

7(e). Transamerica as its grounds for

dismissal alleged failure to comply with

Rule 5(b), and that the appeal was frivol-

ous.

Transamerica's main objection under

Rule 5(b), which begins at page 2, line

17, of its Memorandum, is that F. M.

Cocke's Opening Brief, after laying a

factual background, asserts at page 37

that the separation of F. M. Cocke's

counterclaims, which sought to enforce

the cancellation provisions against Buyers

and Transamerica as joint defendants,

into two separate and independant actions

with separate judgments, violated due

process of law.

Transamerica's main objection under

its claim of frivolity was that the issues

argued in the Opening Brief were res judi-

cata, having been determined in the earlier

appeal. In attempting to prove its point

Transamerica listed seven questions framed

by the Court in the earlier appeal and

which were substituted for the questions

actually presented by the earlier opening

brief. Included in the actual questions

presented but not met or ruled on as a

result of the substitution were part of

Question 2, and Questions 3, 4, 5, and 6

in their entirety, all of which, with the

possible exception of Question 4, involve

the effect or enforcement of the cancella-

tion provisions 16-22 or 24.

426

At page 4, lines 13-20, of Trans-

america's Memorandum in support of its

Motion To Dismiss, Transamerica takes par-

ticular exception to statements made in

F. M. Cocke's present Opening Brief in his

argument on the effect of the cancellation

provisions, which Transamerica states are

not involved in the litigation. Trans-

america also objects to the statements

beginning on page 34 of the Opening Brief,

because they assert that a final deter-

mination of the effect of the cancellation

provisions cannot be made in the absence

of either Transamerica or the Buyers.

These statements are:

In these circumstances, it be-

came obvious four years ago that

a final determination binding on

F. M. Cocke and Buyers, of whether

it was solely Buyers' failure to

retract their new demands that

put an end to the agreement by

cancellation under paragraph 18

or by repudiation, could not be

made in the absence of Transamerica,

inasmuch as such cancellation or

repudiation did not take place be-

fore March 18, 1969, and the escrow

agent's letter approving Buyers'

new demands was written March 10th.

It was equally obvious that a final

determination binding on F. M.

Cocke and Transamerica, of whether

Transamerica put an end under par-

agraph 24 to Buyers' rights under

the agreement by the escrow agent's

letter of March 10, 1969, could not

be made in the absence of Buyers.

It is clear, therefore, that the issue

of whether or not the trial court had

j

427

jurisdiction to separate the enforcement

of the cancellation provisions into two

separate and independent actions, and to

proceed to separate and independent judg-

ments, neither of which ruled on their

effect, is before the Court of Appeals on

Transamerica's Motion to Dismiss as well

as on the Appeal itself.

In a determination by the Court of

Appeals either on the Motion to Dismiss or

on the Appeal itself of the jurisdictional

issue pointed out in the preceding para-

graph: if it be held that the trial court

did not have jurisdiction to separate the

enforcement of the cancellation provisions

against Buyers and Transamerica into two

separate and independent actions, and to

proceed on to separate and independent

judgments, then the judgment entered

September 27, 1972, in favor of Buyers

will be void for want of jurisdiction

over Transamerica.

If it be held that the trial court

did have jurisdiction to separate the en-

forcement of the cancellation provisions

against Buyers and Transamerica into two

separate and independent actions, and to

proceed against each in the absence of the

other on to separate and independent judg-

ments, then the issue of whether Trans-

america put an end to the agreement under

paragraph 24, so putting an end to Buyers’

claimed rights under the agreement, being

before the Court of Appeals, can be deter-

mined in Buyers' absence.

Inasmuch as the issue of the validity

of the judgment entered September 27, 1972,

remains before the Court of Appeals, the

trial court remains without jurisdiction

to proceed with the enforcement thereof

428

pending final determination. Atkinson v.

Atkinson (1965) 2 Ariz. App. 1, 405 P.2a

919.

Itt.

A SUBSTITUTE ESCROW AGENT TO ENFORCE

THE ESCROW CONTRACT AS MODIFIED

BY THE JUDGMENT ENTERED SEPTEMBER 27, 1972

1. NEW EVIDENCE ON THE MODIFICATION

OF THE ESCROW CONTRACT

At page 2, lines 5-16, the Order to

Show Cause orders Transamerica to appear

on September 14, 1973, and show cause:

WHY, IN THE EVENT OF TRANSAMERICA'S

INABILITY OR UNWILLINGNESS TO PROCEED WITH

THE CLOSING OF THE ESCROW AS MAY BE DIRECT-

ED BY THE TRIAL COURT, SUCH COURT SHOULD

NOT APPOINT AS AN OFFICER OF SUCH COURT A

SUBSTITUTE ESCROW AGENT TO ACT IN ACCORD-

ANCE WITH THE ESCROW CONTRACT AS MODIFIED

BY THE JUDGMENT ENTERED SEPTEMBER 27, 1972,

AND BE SUBSTITUTED WITH ALL OF TRANS-

AMERICA'S RIGHTS, PRIVILEGES, AND DUTIFS.

At page 2, lines 11-15, the Order to

Show Cause, by reference to "the ccntract

entered into on October 9, 1969 ... as

modified by the judgment entered Septem>er

27, 1972", recognizes and so admits that

the escrow agreement was, as a matter of

fact, modified by the judgment. Buyers'

Application recognizes or asserts such

modification of the “contract and escrow

instructions" twice at page 8, line 28, to

page 9, line l, again at page 9, lines

27-28, at page 10, lines 5-7 and 25-27,

and at page 1l, lines 24-26. Among other

Exhibits, Buyers have attached to their

Application a copy of the judgment entered

429

September 27, 1972, which in the last

clause, beginning at page 8, line 28,

refers to the "terms of said contract as

modified hereby."

In Goodman v. Newzona Investment oe

101 Ariz. 470, 421 P.2d 318 (1967) the

court pointed out:

It is not within the province

Or power of the court to alter,

revise, modify, extend, rewrite

Or remake an agreement. Its

duty is confined to the construc-

tion or interpretation of the one

which the parties have made for

themselves. Graham County Elec-

tric Coop., Inc. v. Town of

Safford, 95 Ariz. 174, 383 P.2d

169. Where the intent of the

parties is expressed in clear

and unambiguous language, there

is no need or room for construc-

tion or interpretation and a

court may not resort thereto.

Neale v. Hinchcliffe, 21 Ariz.

452, 189 P. 1116.

Manifestly, Buyers in their Applica-

4 4 tion and the trial court judge in his

Order To Show Cause now recognize or

assert, and so admit, that the modifica-

tion of the contract entered into by the

parties is an integral and decisive part

of the judgment of September 27, 1972, in

favor of Buyers. In the light of these

later admissions, the true meaning and

intended effect of the tiny clause at the

very end of the judgment itself, "as

modified hereby," now stands revealed.

Such modification was and is beyond the

power or jurisdiction of the court, and

the judgment entered September 27, 1972,

6 dane OWE aoe alone At Me thie, Ge eh. dlieadh 6raAds

wit atid

Piha rd lhe O 5 Oe) .

was and is therefore void on its face, and

the Order To Show Cause is without basis.

Goodman v. Newzona, supra.

~

2. THE PROPOSED SUBSTITUTE ESCROW

AGENT

There is no provision in the escrow

agreement which authorizes the appointment

of a substitute escrow agent by Buyers or

by Transamerica or by their joint action.

Nor is there any provision in the law

which authorizes the trial court judge to

modify the agreement by adding such a pro-

vision. Goodman v. Newzona, supra.

Further, where a defendant escrow

agent is under the jurisdiction of the

Court of Appeals, awaiting the determina-

tion of issues as to whether the escrow is

to be closed or cancelled, the trial court

is without jurisdiction to appoint a sub-

stitute escrow agent with authority to

close the escrow. Following perfecting

of an appeal, the trial court loses juris-

diction of matters connected with the case,

except in furtherance of the Appeal.

Atkinson v. Atkinson, supra.

It should not be overlooked that fine

print paragraph 43 provides, simply and

effectively:

"Close of Escrow" shall mean the

date of the policy of title in-

Surance to be issued herein.

Manifestly, the escrow cannot be closed by

any escrow agent, until the title policies

are issued. Transamerica has remained un-

willing to issue its title policy on Par-

cel 2 since March 20, 1969 (p. 20 of Open-

ing Brief), and has remained unwilling to

ee ee a ee ae

I i ee ee ee

431

issue its title policy on Parcel 1 since

February 27, 1970 (Deposition of Henry

Kavanaugh, escrow officer, questioned by

Transamerica'’s attorney, February 27,

1970, p. 42).

As this Court pointed out in Higgins

v. Kittleson (1965) 1 Ariz. App. 244, 401

P.2d 412:

The law is well settled that an

escrow agent acts in a fiduciary

capacity and must conduct affairs

with which he is entrusted with

scrupulous honesty, skill, and

diligence. Tucson Title Ins. Co.

v. D'Ascoli, 94 Ariz. 230, 383

P.2d 119 (1963). That he (Escrow

Agent) is a trustee and must act

in accordance with terms of the

escrow agreement. Malta v.

Phoenix Title & Trust Co., 76

Ariz. 116, 259 P.2d 554 (1953).

And that if he (Escrow Agent)

delivers a deed in violation of

the terms of deposit that the

deed conveys no title to grantee.

Hixon v. Davis, 46 Ariz. 543,

52 P.2d 1166 (1935), D'Ascoli

(supra).

(emphasis added)

Clearly, if the deeds are delivered in

violation of the terms of deposit, the

depositors of the deeds can retake the

land.

3. THE CONDITIONAL JUDGMENT ENTERED

ON SEPTEMBER 27, 1972

It should be noted that the judgment

entered on September 27, 1972, in favor of

ee eee ee

ie aa etm 6.

ee ae ee eee 0) Veer

432

Buyers contains the following order, quoted

in Buyers' Memorandum at page 4, lines

194-214, and in the attached copy of the

judgment at page 8, lines 19-23, thereof:

"IT IS FURTHER ORDERED, ADJUDGED

AND DECREED that upon compliance

by Plaintiffs with the terms of

Said contracts, Defendant FRANCIS

M. COCKE shall perform all obliga-

tions necessary in accordance with

the contract between the parties

to convey the subject property;

(emphasis added)

The trial court here ordered, adjudged and

decreed that F. M. Cocke is to perform only

upon compliance by Buyers with the terms

of "said contract". As said in the pre-

vious paragraph of the judgment, this is

the contract dated October 9, 1968, not

September 27, 1972.

IV.

CONCLUSION

Buyers' attempt to now subject Trans-

america, or other escrow agent, to juris-

diction of the trial court has come four

years and a multitude of proceedings too

late, and serves merely to admit that

Transamerica is a real party in interest,

and so to admit the fatal lack of juris-

diction of the trial court over Buyers'

action for specific performance, because

of Buyers' failure to join Transamerica.

As pointed out by Mosher v. Hiner,

supra, Transamerica cannot be bound by

the judgment since it was not joined in

the action and was not a party to the

433

proceedings therein.

It is manifest that Buyers' Motion

for an order referring the file should be

denied.

Respectfully submitted this

13th day of September, 1973.

/s/ L. Alton Riggs, Jr.

L. Alton Riggs, Jr.

5

§

:

3

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ee ee enn

434

COURT OF APPEALS

STATE OF ARIZONA

DIVISION I

FRANCIS M. COCKE,

Appellant and

Cross-Appellee, 1 CA-CIV 2306

Vv. DEPARTMENT A

JAMES STEWART CO., an

Arizona corporation; M.

SETH HORNE and MAURINE

D. HORNE, his wife,

MARICOPA COUNTY

Superior Court

No. C-222472

F. M. COCKE'S

Appellees and MOTION

Cross-Appellants,

FOR FINDINGS OF

GROUNDS UPON

WHICH HIS NOTICE

OF APPEAL AS TO

BUYERS WAS HELD

TO BE UNTIMELY

IN ITS ENTIRETY

Vv.

TRANSAMERICA TITLE IN-

SURANCE COMPANY OF

ARIZONA, an Arizona

corporation,

Filed:

September 19, 1973

Appellee.

eee eee ee eee ee eee ee oe ee oe ee

Appellant F. M. Cocke respectfully

moves the Court for a specific finding of

the grounds upon which his Notice of Appeal

from the judgments and orders as to appel-

lees James Stewart Co. and the Hornes,

herein called the Buyers, was held by the

Order of May 17, 1973, to be untimely in

its entirety, and for such other relief

as the Court deems meet and just, for the

reasons set forth below.

STATEMENT OF FACTS

l. Buyers in their Motion to Dismiss

advanced several different theories in

435

support of their contention that the

Notice of Appeal was untimely, but there

was no finding in the Order of May 17,

1973, as to which of these if any was, or

were, adopted by the Court.

Buyers in their Motion contended

beginning at page 2, line 18, that F. M.

Cocke's Motion to Vacate did not qualify

as a motion to alter or amend under Rule

59(1), so as to extend the time limit for

a notice of appeal from the judgments,

under Rule 73(b)2iii, as amended.

At page 2, lines 18-28, Buyers sug-

gested the Motion to Vacate was itself

untimely, and correctly showed that it

was filed October 10, 1972, thirteen days

after September 27, 1972. Buyers did not

mention that ten days after September 27,

1972, fell on a Saturday, nor that the

following Monday was a court holiday. At

page 3, lines 12-18, Buyers suggested that

the Motion to Vacate did not assert a de-

fense on the merits by claiming that in

each and every paragraph thereof it sought

to have the court vacate the judgment and

declare the same void for lack of juris-

diction.

The Motion to Vacate, filed October

10, 1972, is in Vol. XI of the Abstract,

at pages 954-987. Buyers' Response there-

to, filed October 12, 1972, is at pages

988 and 989, and Transamerica's Response,

filed October 24, 1972, is at pages 990-

992. F.M. Cocke's Reply to these re-

sponses, filed November 7, 1972, is at

pages 993-1000.

The trial court's minute order of

November 6, 1972, denying F. M. Cocke's

Motion to Vacate, and the minute order

436

of November 8, 1972, acknowledging re-

ceipt of F. M. Cocke's Reply, stating

the court had reviewed the "Response"

and its ruling of November 6, 1972, and

reaffirming its ruling of November 6,

1972, are the last two minute entires

in Vol. XIII of the Abstract.

In the Court of Appeals, Buyers'

Motion to Dismiss revealed no attempt to

comply with the mandatory provisions of

Supreme Court Rule 7. There was no cer-

tificate, as required by Rule 7(c)l, of

the clerk of the superior court certify-

ing, nor did Buyers otherwise mention,

that the Orders of November 6 and 8, 1972,

were appealed from. Both such orders were

designated by the Notice of Appeal (Vol.

XIl, p. 1008 of Abstract).

In F. M. Cocke's Reply to Buyers'

motion to dismiss the appeal, at page 4,

line 15, he called the court's attention

to its holding in Secrist v. State of

Arizona (1965) 2 Ariz. App. 240, 407 P.2d

781, that a motion filed on 27 April,

1959, by the Attorney General of Arizona,

to vacate on jurisdictional grounds an

adverse judgment entered 2 July, 1947,

and which motion also asserted a valid

defense, was a valid motion, appealable

within the meaning of Rule 73(b) and

; Section 12-2101 ARS.

In his Motion For Rehearing, F. M.

Cocke at page 3, line 23, again pointed

to the Secrist case, and at page 4, line

3, to Preston v. Denkins (1963) 94 Ariz.

214, 382 P.2d 686, in which the Arizona

Supreme Court, sitting en banc, in a

unanimous decision held that the right

to challenge a judgment on the ground

that it is void for lack of jurisdiction

437

of the parties does not depend upon rules

of court or statute, that a judgment void

for lack of jurisdiction may be set aside

by means of a motion to vacate, and that

an order setting aside an entire judgment

as void does not leave the judgment valid

as against defendants not properly before

the Court on the motion to vacate.

MEMORANDUM OF POINTS AND AUTHORITIES,

AND ARGUMENT

The right under the due process clause

of the 14th Amendment to a full hearing

includes the right of the party whose

rights are sought to be affected to in-

troduce evidence and have judicial find-

ings based upon it. 16 AmJur 2d 984,

Constitutional Law, Section 579, citing

Baltimore and Ohio R. Co. v. United States,

298 U.S. 349, 80 L.ed 1209, 56 S.Ct. 797;

Butler v. State, 217 Miss. 40, 63 So. 2d

779.

In State of Washington ex rel. Oregon

Railroad and Navigation Co. v. Fairchild,

224 U.S. 510, 56 L.ed 863, 32 S.Ct. 535,

the court said:

This necessitates an examination

of the evidence, not for the pur-

pose of passing on conflicts in

the testimony, or of deciding upon

pure questions of fact, but, as

said in Kansas City Southern R.

Co. v. C. H. Albers Commission

Co., 223 U.S. 591, ante. 565, 32

Sup. Ct. Rep. 320, from an inspec-

tion of the “entire record includ-

ing the evidence, if properly in-

corporated therein, to determine

whether what purports to be a

438

finding upon questions of fact is

so involved with and dependent

upon such questions of law as to

be in substance and effect a

decision of the latter.”

(emphasis added)

Where the question of jurisdiction is

one of law, a court cannot by an erroneous

decision acquire jurisdiction which it

has not, or divest itself of jurisdiction

which it has. 21 CJS, Courts, Section

115.

The Court of Appeals, Division 2, in

In Re Estate of Henry (1967), 6 Ariz. App.

183, 430 P.2d 937, quoted and followed

Bernstein, "The Disposition of Civil

Appeals in the Supreme Court,” 5 Ariz. L.

Rev. 175-192 (Spring 1964):

If counsel believes that grounds

exist for dismissing an appeal, he

should assume the affirmative

burden of demonstrating that to

the Court by motion. A motion to

dismiss must be presented in writ-

ing. Rules 4 and 7 of the Rules

of the Supreme Court (17 A.R.S.)

prescribe in detail the form of

the motion, the number of copies,

the notation of service, the time

for the response, as well as the

other formal requirements. These

requirements should be followed

explicitly. They insure that the

parties have a full opportunity

to present to the Court, and that

the Court has before it, all

applicable facts and arguments.

A motion which has such final and

serious consequences as one to

439

dismiss an appeal should not be

presented or decided perfunctorily.

(Emphasis added by Court)

In the instant case, the applicable fact

of the appeal from the Orders of November

6 and 8, 1972, and therefore its dismissal,

were not before the Court on Buyers'

Motion to Dismiss, inasmuch as no mention

of the appeal or of its dismissal was

made by either the Motion or by a certifi-

cate of the clerk of the superior court.

In Caruso v. Superior Court In And

For County of Pima (1966) 100 Ariz. 167,

412 P.2d 463, the court said:

Acts in excess of jurisdiction

include acts exceeding the power

of the court as defined by consti-

tution, statute or court rules

followed under the doctrine of

Stare decisis, Abelleira v.

District Court, 17 Cal.2d 280,

109 P.2d 942, 132 A.L.R. 715

approved in Duncan v. Truman,

74 Ariz. 328, 248 P.2d 879, and

acts where the lower tribunal has

abused its discretion. Dean v.

Superior Court, 84 Ariz. 104,

324 P.2d 764, 73 A.L.R.2d 1;

State ex rel Rohan v. Superior

Court, 95 Ariz. 319, 390 P.2d

109.

In the Abelleira case (1941) the

California Supreme Court said:

Lack of jurisdiction in its most

fundamental or strict sense means

an entire absence of power to hear

or determine the case, an absence

of authority over the subject

matter or the parties.

440

But in its ordinary usage the

phrase “lack of jurisdiction"

is not limited to these funda-

mental situations. For the

purpose of determining the right

to review by certiorari, restraint

by prohibition, or dismissal of

an_action, a much broader meaning

is recognized. Here it may be

applied to a case where, through

the court has jurisdiction over

the subject matter and the par-

ties in the fundamental sense,

it has not "jurisdiction" (or

power) to act except in a par-

ticular manner, or to give cer-

tain kinds of relief, or to act

without the occurrence of certain

procedural prerequisites.

The concept of jurisdiction em-

braces a large number of ideas of

Similar character, some fundamental

to the nature of any judicial sys-

tem, some derived from the require-

ment of due process, some deter-

mined by the constitutional or

statutory structures of a partic-

ular court, and some based upon

mere procedural rules originally

devised for convenience and effi-

ciency, and by precedent made

mandatory and jurisdictional.

In our own recent decision, Rohan

v. Superior Court, 13 Cal.2d 262,

89 P.2d 109, 112, we said: '. ..

some confusion exists with reference

to what constitutes an excess, and

what constitutes an error, in the

exercise of jurisdiction. However,

it seems well settled (and there

appears to be no case holding to

44]

the contrary) that when a statute

authorizes prescribed procedure,

and the court acts contrary to

the authority thus conferred, it

has eaceeded its jurisdiction,

and certiorari will lie to correct

such excess.'

(emphasis added)

In the instant case the prescribed proced-

ure was prescribed by Supreinme Court Rule.

Ve

In Rio Grande Irrigation & Coloniza-

tion Co. v. Gildersleeve, 174 U.S. 603,

19 S.Ct. 761, 43 L.ed 1103, the court

said (L.ed, p. 1105):

As was said in Thompson v. Hatch,

3 Pick. 512: "A duly authorized

rule of court has the force of

law, and is binding upon the

court as well as upon parties to

an action, and cannot be dis-

pensed with to suit the circum-

stances of any particular case

.The courts may rescind or

repeal their rules, without doubt;

or in establishing them, may re-

serve the exercise of discretion

for particular cases. But the

rule once made without any such

qualification must be applied to

all cases which come within it,

until it is repealed by the

authority which made it."

(emphasis added)

Obviously, it does not lie within the

power of the parties to free the court

from the binding effect of existing and

mandatory rules.

442

A court is bound to take notice of

the limits of its authority; and it is

its right and duty to make a preliminary

examination of its jurisdiction to enter-

tain the cause, of its own motion, even

though the question is not raised by

the pleadings or is not suggested by

counsel. If the court finds at any stage

of the proceedings that it is without

jurisdiction, it is its duty to take

proper notice of the defect by staying

the proceedings, dismissing, or other

appropriate action. These rules apply

irrespective of the wishes of the parties,

Or either of them. 21 CJS, Courts,

Section 114,

Courts exercising appellate jurisdic-

tion will examine into their power to

entertain the matter before them even in

the absence of an issue being raised by

counsel. Stevens v. Mehagian's Home

Furnishings, Inc., 90 Ariz. 42, 365 P.2d

208 (1961); Ginn V. Superior Court, 1

Ariz. App. 455, 404 P.2d 721 (1965);

Searles v. Haldeman, 3 Ariz. App. 294,

413 P.2d 860 (1966).

In Thompson v. Whitman, 85 U.S. 457,

21 L.ed 897, the court said:

Thus, in Elliott v. Peirsol, 1 Pet.,

328, 340, it was held that the

Circuit Court of the United States

for the District of Kentucky might

question the jurisdiction of a

county court of that State to order

a certificate of acknowledgment to

be corrected; and for want of such

jurisdiction to regard the order

as void. Justice Trimble, de-

livering the opinion of this court

in that case, said: Where a court

443

has jurisdiction, it has a right

to decide every question which

occurs in the cause, and whether

its decision be correct or other-

wise, its judgment, until reversed,

is regarded as binding in every

other court. But, if it act without

authority, its judgments and orders

are regarded as nullities. They

are not voidable, but simply void.

(emphasis added)

The authority to entertain motions to dis-

miss having been granted by Rules 4 and 7,

the Court remains without authority to

entertain such motions except upon the

terms and conditions therein specified.

Where a court is without jurisdiction

in the particular case, its acts and pro-

ceedings can be of no force or validity,

and are a mere nullity and void, not void-

able, even prior to reversal, whether the

lack of jurisdiction appears on the face

of the record or by proof outside of it;

likewise, a court's acts in excess of its

jurisdiction are void, even if it has

jurisdiction of the subject matter of the

action and of the parties, as where a

court of special or limited jurisdiction

exceeds its powers. 21 CJS, Courts,

Section 116. The jurisdiction of the

Court to entertain motions to dismiss is

plainly limited to motions that meet the

mandatory provisions of Rule 7.

In Old Wayne Mutual Life Assn. v.

McDonough, 204 U.S. 8, 51 L.ed 345, 27

S.Ct. 236, the court said, quoting Scott

v. McNeal, 154 U.S. 34, 46, 38 L.ed 896,

901, 14 S.Ct. 1108:

be Oi. tat de eanhntad

444

No judgment of a court is due

process of law, if rendered

without the jurisdiction in

the court, . .

Truax v. Corrigan, 257 U.S. 312,

66 L.ed 254, 42 S.Ct. 124, quoted and

followed Barbier v. Connelly, 113 U.S. 27,

28 L.ed 923, 5 S.Ct. 357, in which the

court said:

The 14th Amendment, in declaring

that no State “Shall deprive any

person of life, liberty or property

without due process of law, nor

deny to any person within its jur-

isdiction the equal protection of

the laws," undoubtedly intended,

. . -that all person. . .should

have like access to the courts of

the country for the protection of

their persons and property, the

prevention and redress of wrongs

ana the enforcement of contracts;

(emphasis added)

In Lindus v. Northern Insurance Co.

of New York, Reh. Den. 1968, 103 Ariz.

160, 438 P.2d 31l, the court said:

We believe, however, that the

proper criterion to be considered

in determining whether to recall

a mandate was succinctly expressed

by the Supreme Court of the United

States in the United States v. Ohio

Power Co., 353 U.S. 98, 99, 77 S.Ct.

652, 653, 1 L.ed.2d 683, where it

is stated: ". . .the interest in

finality of litigation must yield

where the interests of justice

would make unfair the strict

application of our rules.”

445

Of course where there has been

either fraud, imposition, or mis-

take of fact, the court can always

recall a mandate to modify or

correct its own judgment. Overson

v. Martin, 90 Ariz. 151, 367 P.2d

203.

CONCLUSION

It is clear that Buyers' Motion to

Dismiss placed before the Court the

question whether F. M. Cocke's Notice of

Appeal from the Judgments was timely.

This question made necessary the deter-

mination (1) whether the Motion to Vacate

was timely, and (2) whether it qualified

as a motion to alter or amend under Rule

59(1), so as to extend the time limit for

a notice of appeal from the judgments.

It is equally clear that Buyers'

Motion to Dismiss did not place before the

Court the question (3) whether F. M. CockesS

Notice of Appeal from the Orders of Novem-

ber 6 and 8, 1972, denying his Motion to

Vacate was timely, but that Buyers' Motion

to Dismiss did place before the Court,

although somewhat obliquely, the question

(4) whether F. M. Cocke's Motion to Vacate

asserted a valid defense on the merits.

The Court of Appeals Order of May 17,

1973, found only that F. M. Cocke's Notice

of Appeal was untimely in its entirety as

to appellees James Stewart Co. and the

Hornes.

The questions whether (5) Secrist v.

State of Arizona, supra, and (6) Preston

v. Denkins, supra, are controlling as to

F. M. Cocke's Motion to Vacate were

446

raised in his Reply and Motion For Rehear-

ing.

Upon the above facts and law it

appears that appellant is entitled as a

matter of due process to findings on the

questions listed above, and to such other

relief as the Court deems meet and just.

Respectfully submitted this

19th day of September, 1973.

By /s/ L. Alton Riggs, Jr.

L. Alton Riggs, Jr.

1540 E. University, Suite 200

Mesa, Arizona 85203

Attorney for appellant

Francis M. Cocke

447

COURT OF APPEALS

STATE OF ARIZONA

DIVISION I

FRANCIS M. COCKE, )

)

Appellant and)

Cross-Appellee,)

' )

Vv. )

)

JAMES STEWART CO., an )

Arizona corporation; M.)

SETH HORNE and MAURINE )

D. HORNE, his wife, )

)

Appellees and)

Cross-Appellants,)

1 CA-CIV 2306

DEPARTMENT A

MARICOPA COUNTY

Superior Court

No. C-222472

MEMORANDUM IN

OPPOSITION TO

F. M. COCKE'S

MOTION FOR FIND-

) INGS OF GROUNDS

UPON WHICH HIS

NOTICE OF APPEAL

AS TO BUYERS WAS

HELD TO BE UN-

Vv.

)

)

TRANSAMERICA TITLE IN- )

SURANCE COMPANY OF )

)

)

)

)

ARIZONA, an Arizona TIMELY IN ITS

corporation, ENTIRETY

Filed:

Appellee.

)

September 21, 1973

Appellant, F. M. Cocke, has filed a

motion requesting this Court to make a

specific finding "of the grounds upon

which his Notice of Appeal from the judg-

ments and orders as to appellees James

Stewart Co. and the Hornes, Buyers,

was held by the Order of May 17, 1973, to

be untimely in its entirety, and for such

other relief as the Court deems meet and

just, ...." This is a memorandum in oppo-

Sition to that motion. For the reasons

set forth below, the appellees maintain

that the motion must be summarily denied.

448

On May 17, 1973, this Court entered

an order in response to a motion filed by

appellees James Stewart Co. and the Hornes

to dismiss the appeal of F. M. Cocke

against them on the grounds that it was

not timely perfected. That order pro-

vided, in part, as follows:

"It appearing to the Court that

the appellant's notice of appeal

from the judgments and orders as

to appellees Horne and James

Stewart Co. is untimely,

"IT IS ORDERED dismissing appel-

lant's appeal in its entirety as

to appellees Horne and James

Stewart Co."

Section 12-120.24, A.R.S., provides,

in part, as follows:

"A party ... against whom a motion

for dismissal of the action has

been granted in the court of appeals

may file in such court a motion for

rehearing after the rendition of

the ... order of dismissal, setting

forth with particularity the reasons

why he believes the ... order of

dismissal erroneous.... If the

motion is denied, and the party

against whom the ... order has been

rendered desires a further review

by the supreme court, he shall

serve upon the opposite party and

file with the clerk of the divis-

ion a statement that he desires

such review.... If no request for

review by the supreme court has

been filed, ... the clerk of the

division shall, ... issue the man-

date of the court of appeals,

449

by certified copy of the order

of the court."

Following the dismissal of the appeal

of F. M. Cocke against Stewart and Horne,

the appellant filed a timely moticn for re-

17, 1973. On June 13, 1973, the Court

denied the appellant's motion for rehear-

ing. The appellant did not file a peti-

tion for review with the Supreme Court

following the denial of the motion for re-

hearing as provided by Rule 47(b) of the

Rules of the Court of Appeals, and there-

fore, on July 5, 1973, the Court entered

its order dismissing the cross-appeal of

Stewart and Horne pursuant to its order of

June 13, 1973.

Based upon the foregoing, the instant

motion should be summarily denied. Stewart

and Horne submit that the appeal of F. M.

Cocke is not concluded. This follows from

the denial of his motion for a rehearing

on June 13, 1973, and his failure to file

a petition for review with the Supreme

Court. If appellant wanted to pursue this

matter further, he need only to have filed

a timely petition for review. Having not

done so, Stewart and Horne submit that this

Court is without further jurisdiction other

than the issuance of its mandate referring

the case back to the Superior Court.

Moreover, the motion of Cocke should

be dismissed as unmeritorious. An order

of this Court is not a decision as requires

publication setting forth the specific

findings and reasons upon which the appeal

was dismissed. Cf. McRae v. Forren, 428

P.2d 129 (1967).

It follows that F. M. Cocke's motion

450

for findings of grounds upon which his

notice of appeal as to buyers was held to

be untimely in its entirety should be

summarily denied.

Respectfully submitted,

KELLY AND CORBIN

/s/ Hubert E. Kelly

Hubert E. Kelly

Attorneys for Appellees

James Stewart Co., an Arizona

corporation, M. Seth Horne and

Maurine D. Horne, his wife

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

FRANCIS M. COCKE,

Appellant and

Cross-Appellee,

Vv.

JAMES STEWART CO., an 1 CA-CIV 2306

Arizona corporation; M.

SETH HORNE and MAURINE

D. HORNE, his wife,

DEPARTMENT A

MARICOPA County

Superior Court

No. C-222472

Appellees and

Cross-Appellants.

FRANCIS M. COCKE, O-R-D-E-R

Appellant,

Vv.

TRANSAMERICA TITLE IN- Filed:

SURANCE COMPANY OF

ARIZONA, an Arizona

corporation,

October 2, 1973

Appellee.

eee ee ee ee eee ee ee ee ee”

- ee ee ee

The motion to dismiss appeal filed

by appellee Transamerica Title Insurance

Company, its request for assessment of

attorney's fees and costs on appeal and

the response thereto have been considered

by Judges Donofrio, Ogg and Stevens. In

addition, the "motion to refer file per-

taining to James Stewart, an Arizona cor-

poration, M. Seth Horne and Maurine D.

452

Horne, his wife, back to Maricopa County

Superior Court" and the reply thereto have

also been considered. It is the opinion

of the Court that the appeal from the

judgment in favor of Transamerica Title

is frivolous.

IT IS ORDERED granting Transamerica

Title Insurance Company of Arizona's

motion, and the appeal is hereby dismissed

IT IS FURTHER ORDERED that it is the

opinion of the Court that the appeal is

frivolous. Nevertheless, the Court de-

clines to impose sanctions authorized by

A.R.S. §12-2106.

IT IS FURTHER ORDERED denying the

motion of Stewart and Horne to refer por-

tions of the file back to the Maricopa

County Superior Court.

/s/ Francis J. Donofrio

FRANCIS M. DONOFRIO, —

Presiding Judge, Department A

453

IN THE SUPERIOR COURT

OF THE STATE OF ARIZONA

JAMES STEWART CO., an Arizona corporation;

M. SETH HORNE and MAURINE D. HORNE, his

wife; vs. FRANCIS M. COCKE, a divorced man;

and JOAN H. COCKE, a divorced woman

C-222472

F. M. COCKE'S MOTION TO SET ASIDE ORDER OF

OCTOBER 31, 1973, GRANTING APPLICATION FOR

WRIT OF ASSISTANCE, LTC.

Filed: November 9, 1973

Defendant F. M. Cocke respectfully

moves the Court to set aside the Order,

dated October 31, 1973, Granting Applica-

tion For Writ Of Assistance, or, Alterna-

tively, Requiring Compliance With Judgment

Dated September 27, 1972, Or For A Supple-

mental Bill Enforcing Said Judgment, upon

the following grounds:

I.

ORDER TO SHOW CAUSE, AND

HEARING, PREMATURE

It appears that plaintiff's Applica-

tion For Writ Of Assistance, etc., was

filed, and the Order To Show Cause signed,

in the trial court on September 7, 1973.

On September 10, 1973, Appellees James

Stewart Company, M. Seth Horne and Maurine

D. Horne filed in the Court of Appeals

their Motion to Refer File pertaining to

them back to Superior Court. This motion

evidenced appellees' admission that juris-

diction remained in the appellate court,

along with the record. F. M. Cocke's Re-

ply to Buyers' Motion to Refer (copy

attached as Exhibit A) was filed September

454

13, 1973. On October 2, 1973, the appel-

late court exercised jurisdiction by deny-

ing appellees' Motion to Refer File, and

granted Transamerica's motion to dismiss

as to Transamerica.

It also appears that the only hearing

held on plaintiff's Applica*ion For Writ,

etc., was held October 12, i373, pursuant

to the Order to Show Cause issued September

7, 1973.

Under Supreme Court Rule 9(a), F. M.

Cocke was allowed 15 days from October 2,

1973, to file a motion for rehearing on

the order dismissing his appeal as to

Transamerica. Throughout such time period

the appellate court then retained juris-

diction over the issues raised by Trans-

america in its Motion to Dismiss. Copies

of such motion and of F. M. Cocke's Reply

thereto are attached as Exhibit B. These

issues included the issue of whether the

trial court had jurisdiction to separate

the enforcement of the cancellation pro-

visions, sought by F. M. Cocke's counter-

claim jointly and severally against Buyers

and Transamerica, into two separate and

independent actions, with separate and in-

dependent judgments. Neither of the judg-

ments ruled on the effect of the cancella-

tion provisions.

The issues of the validity of the

September 27, 1972, judgment in favor of

Buyers therefore remained within the juris-

diction of the appellate court until

October 17, 1973.

The Order to Show Cause issued on

September 7, 1973, and the hearing held

pursuant thereto on October 12, 1973,

were therefore premature, and not within

455

the power of the jurisdiction of the Court.

The file was not returned to the

Superior Court until October 30, 1973.

Where the question of jurisdiction

is one of law, a court cannot by erroneous

decision acquire jurisdiction which it has

not, or divest itself or jurisdiction which

it has. 21 CJS, Courts, Section 115.

For the foregoing reasons defendant-

counterclaimant F. M. Cocke respectfully

requests that the Order entered October

31, 1973 be set aside.

Respectfully submitted this

9th day of November, 1973.

By /s/ L. Alton Riggs, Jr.

L. Alton Riggs, Jr.

1450 E. University, Suite 200

Mesa, Arizona 85203

Attorney for Appellant

Francis M. Cocke

STATE OF ARIZONA )

4 ss.

County of Maricopa )

F. M. COCKE being first duly sworn,

on oath deposes and says:

That he is one of the defendants in

the foregoing entitled and numbered cause;

and that he has read the foregoing motion

and knows the contents thereof, and that

the matters and things stated therein are

true of his own knowledge, except as to

those matters therein specifically stated

to be upon information and belief, and as

to those matters he believes them to be

true.

/s/ Francis M. Cocke

FRANCIS M. COCKE

457

IN THE SUPERIOR COURT

OF THE STATE OF ARIZONA

JAMES STEWART CO., an Arizona corporation;

M. SETH HORNE and MAURINE D. HORNE, his

wife; vs. FRANCIS M. COCKE, a divorced man;

and JOAN H. COCKE, a divorced woman

C-222472

AMENDMENT TO F. M. COCKE'S MOTION TO SET

ASIDE ORDER OF OCTOBER 31, 1973, GRANTING

APPLICATION FOR WRIT OF ASSISTANCE, ETC.

Filed: November 13, 1973

Comes now defendant F. M. Cocke and

hereby amends his Motion To Set Aside Order

Of October 31, 1973, Granting Application

For Writ Of Assistance, Etc., as follows:

At page 2, line 30, changing the word

"of" to "or"; at page 3, line 5, changing

the phrase "or jurisdiction” to "of juris-

diction"; at page 3, line 15, changing

"Appellant" to "Defendant", and following

page 3, line 9%, add the following:

Further, the proposed Writ of Assist-

ance, Etc., could only issue against par-

ties bound by the decree. Terrell v.

Allison, 21 Wall (U.S.) 289, 22 L.ed 634;

6 Am Jur 2d, Assistance, Writ Of, Section

9. Transamerica was not a party to Buyers'

action for specific performance.

Buyers' Application For Writ, Etc.,

and the Order To Show Cause, of September

7, 1973, and the Order of October 31, 1973,

Granting Writ Of Assistance, Etc., estab-

lished that on September 7 and October 31,

1973, the escrow agent, as holder of

Sellers' deeds and Buyers' money and

mortgages, was an indispensable party to

458

Buyers’ action. Transamerica was therefore

an indispensable party upon the filing of

Buyers’ Complaint For Specific Performance,

on April 22, 1969.

Although Buyers attached a copy of

the preliminary Agreement and escrow in-

structions to their Complaint, and de-

manded as part of the relief sought that

the title policies be issued and the escrow

be ordered closed, Buyers failed to join

Transamerica under Rule 19 as amended, 16

ARS Rules of Civil Procedure. This left

the Court without the power to grant the

relief sought, and thus without jurisdic-

tion to determine the rights of the parties,

Terrell v. Allison, supra., or as stated by

Rule 12(b), without jurisdiction over the

subject matter. Hamilton v. Nakai (9th

Cir., 1972) 453 F.2d 152, cert. den. (1972)

406 U.S. 945. The judaqment being void on

the face of the judgment roll is void on

its face. Arenas v. United States, 95 F.

Supp. 962, affirmed (9th Cir. 1952) 197

F.2d 418.

The Order of October 31, 1973, took

judicial notice that Transamerica was no

longer willing to act as escrow agent and

close the escrow as modified by the judg-

ment of Septeiper 27, 1972, or in any

manner act in connection with the said

escrow or the closing thereof.

The fifth paragraph of Schedule "A"

provides:

These instructions and ‘hat cer-

tain Sales Agreement entered into

October 9, 1968, between Buyer

and Sellers constitute a binding

agreement between Buyer and

Seller for purchase and sale

459

of the property described under

the terms set forth herein.

If any applicable and material term

of the preliminary Agreement and escrow

instructions was modified by the judgment,

the judgment is to that extent void for

want of jurisdiction. Goodman v. Newzona

Investment Co. (1967) 101 Ariz. 470, 421

P.2d 318.

The established unwillingness of

Transamerica as escrow agent to comply with

the escrow instructions and as title in-

surer to issue the title policies now re-

quires the prompt return of Sellers' three

deeds to the depositors thereof, as speci-

fied by the mandatory and self-executing

terms of paragraph 24.

Respectfully submitted this

13th day of November, 1973.

/s/ L. Alton Riggs, Jr.

L. Alton Riggs, Jr.

1450 E. University, Suite 200

Mesa, Arizona 85203

Attorney for Defendant

Francis M. Cocke

460

IN THE SUPERIOR COURT

OF THE STATE OF ARIZONA

JAMES STEWART CO., an Arizona corporation;

M. SETH HORNE and MAURINE D. HORNE, his

wife; vs. FRANCIS M. COCKE, a divorced man;

and JOAN H. COCKE, a divorced woman

C-222472

PLAINTIFFS' RESPONSE TO F. M. COCKE'S

MOTION TO SET ASIDE ORDER OF OCTOBER 31,

1973, GRANTING APPLICATION FOR WRIT OF

ASSISTANCE, ETC., AND AMENDMENT THERETO

Filed: November 20, 1973

This is a memorandum in response to

F. M. Cocke's Motion to Set Aside Order of

October 31, 1973, granting the writ of

assistance issued by the Court on that day,

and his amendment to said motion filed on

or about November 13, 1973.

The gravamen of the motion of F. M.

Cocke is that the order to show cause,

hearing and the resulting order and writ

issued by the Court were untimely because

the Court was without jurisdiction to do

so. Plaintiffs submit that the motion of

F. M. Cocke should be summarily denied

for the following reasons.

First, F. M. Cocke was given adequate

notice of the filing of plaintiffs’ Appli-

cation for Writ of Assistance, or, Alter-

natively, for an Order Requiring Compliance

with Judgment Dated September 27, 1972, or

for a Supplemental Bill Enforcing Said

Judgment, the Order to Show Cause issued

by the Court on September 7, 1973, and

the resulting hearings thereon. The file

contains the affidavit of counsel to the

effect that the Application for Writ of

Assistance and the Order to Show Cause

461

were served on counsel for F. M. Cocke on

September 7, 1973. Therefore, F. M. Cocke's

failure to respond and his failure to

appear at the hearing on the application

constitute a default and he is in no stand-

ing at this particular time to move to set

aside the order of October 31, 1973, and

the writ of assistance issued pursuant

thereto.

Secondly, the position of F. M. Cocke

that the trial court exceeded its juris-

diction is wholly without grounds. The

general rule is that the dismissal of an

appeal leaves the decree of the subordinate

court in effect. A dismissal is a final

disposition of a case in the appellate

court and deprives that court from further

jurisdiction. 5 Am. Jur. 2d, Appeal and

Error, Section 930. In addition, the per-

fecting of an appeal within the time pre-

scribed is jurisdictional. Where the

appeal is not timely filed, the appellate

court acquires no jurisdiction other than

that necessary to dismiss the appeal.

Edwards v. Young, 486 P.2d 181, 182 (Ariz.

1971); Harbel Oil Co. v. Steele, 298 P.2d

789, 790 (Ariz. 1956).

Under the holding of the foregoing

cases, plaintiffs submit that the appellate

court, insofar as the appeal of F. M. Cocke

related to them, never acquired juridic-

tion, and therefore this court was at all

times a jurisdictional forum for them to

seek enforcement of the judgment of Sep-

tember 27, 1972. With regard to F. M.

Cocke's appeal concerning counterdefendant,

Transamerica Title Insurance Company of

Arizona, there was no privity between that

appeal and plaintiffs' case, and therefore

in no way should it interfere with the

order granted by the Court on October 31,

462

1973, giving plaintiffs the relief sought

by the Application for Writ of Assistance.

For the foregoing reasons, it is re-

spectfully submitted that the motion filed

by F. M. Cocke to set aside the order of

October 31, 1973, granting the Application

for Writ of Assistance, and his amendment

thereto, should be summarily denied.

Respectfully submitted,

KELLY AND CORBIN

/s/ Hubert E. Kelly

Hubert E. Kelly

Attorneys for Plaintiffs

463

IN THE SUPERIOR COURT

OF THE STATE OF ARIZONA

IN AND FOR

THE COUNTY OF MARICOPA

JAMES STEWART CO.,an

Arizona corporation;

M. SETH HORNE and

MAURINE D. HORNE,his

wife,

)

)

)

)

)

)

Plaintiffs, )

) NO. C-222472

vs. )

) TRANSAMERICA TITLE'S

FRANCIS M. COCKE, a ) RESPONSE TO F. M.

divorced man; and ) COCKE'S MOTION TO

JOAN H. COCKE, a di- ) SET ASIDE ORDER OF

vorced woman, ) OCTOBER 31, 1973,

) GRANTING APPLICA-

) TION FOR WRIT OF

) ASSISTANCE, ETC.,

)

)

)

)

)

)

)

)

)

)

)

Defendants,

vs. AND AMENDMENT

THERETO

TRANSAMERICA TITLE

INSURANCE COMPANY OF Filed:

ARIZONA, an Arizona

corporation, November 29, 1973

Additional Defend-

ant on Counterclaim

of F. M. Cocke.

F. M. Cocke's Motion essentially at-

tacks the jurisdiction of this Court.

Suffice it to say that this Court has

jurisdiction by virtue of the fact that

the real property involved in the litiga-

tion is in Maricopa County and by virtue

of the fact that Mr. Cocke, the purchasers,

464

Transamerica Title and all parties involved

have openly and willingly submitted them-

selves to the jurisdiction of this Court.

It is Transamerica Title's position that

this Court has had jurisdiction at all

material times and does now have juris-

diction to enter the orders that have been

entered herein.

Fespectfully submitted,

BROWDER & GILLENWATER, P.C.

By /s/Powell B. Gillenwater

Powell B. Gillenwater

Attorneys for Transamerica Title

Insurance Company of Arizona

465

IN THE SUPERIOR COURT

OF THE STATE OF ARIZONA

IN AND FOR

THE COUNTY OF MARICOPA

JAMES STEWART CO.,an

Arizona corporation;

M. SETH HORNE and

MAURINE D. HORNE, his

wife,

)

)

)

)

)

)

Plaintiffs,)

) NO. C-222472

vs. )

) F. M. COCKE'S

FRANCIS M. COCKE, a ) REJOINDER TO

divorced man; and ) BUYERS' AND TRANS-

JOAN H. COCKE, a di- ) AMERICA'S REPLIES

vorced woman, ) TO HIS MOTION TO

) SET ASIDE ORDER

) AND WRIT AND F. M.

) COCKE'S MOTION FOR

) FINDINGS AND CON-

) CLUSIONS

)

)

Defendants,

vs.

TRANSAMERICA TITLE

INSURANCE COMPANY

OF ARIZONA, an Arizona) Filed:

corporation, " ) December 3, 1973

)

Additional Defendant)

on Counterclaim )

of F. M. Cocke. )

)

Defendant-counterclaimant F. M. Cocke

hereby submits his Rejoinder to the Re-

plies of plaintiff Buyers and of Trans-

america, and respectfully moves the court

for findings of fact and conclusions of

law on the questions set forth below con-

cerning new or additional evidence

466

disclosed by the Application For Writ of

Assistance, etc., filed September 7, 1973,

by the Order Granting Writ and by the Writ «

itself, issued October 31, 1973, all of

which were prepared by Buyers.

REJOINDER

Buyers’ claim of default is without mer-

it. The cases they cite in support of the

general rule, and the general rule, are not

controlling here. Tne case that controls

this point is Cocke v. Buyers v. Transamer-

ica, and the point was decided by Buyers

and the Court of Appeals. Buyers as appel-

lees submitted to the jurisdiction of the~

Court of Appeals, thereby acknowledging

same, by filing on September 10, 1973, their

Motion to Refer File. The Court of Appeals

exercised its jurisdiction by denying Buy-

ers' Motion on October 2, 1973, and also by

dismissing F. M. Cocke's appeal. Buyers

and F. M. Cocke each had until October 17

to file motions for rehearing, and the

trial court could not affect the rights of

either by proceedings held therein prior to

that date, particularly where one did not

choose to cast doubt on his rights in the

appellate courts by appearing.

Transamerica in its Response has care-

fully refrained from stating that F. M.

Cocke submitted to the jurisdiction of this

Court before the record was returned. Sig-

nificantly, the Order granting the Writ was

not entered, nor the Writ issued, until

after the record was returned.

Much more significant, however, is the

new or additional evidence submitted to

this Court by Buyers' Application For Writ,

the Order Granting Application For Writ,

467

and the Writ itself.

MOTION FOR FINDINGS AND CONCLUSIONS

I.

GROUNDS AND REASONS

This motion is filed on the grounds and

for the reasons that:

1. The jurisdiction of the court in the

Original cause is always open to question in

the enforcement of a writ of assistance.

Earle v. McVeigh, 91 U.S. 503, 23 L.ed 398;

Howard v. Milwaukee, etc., R. Co., 101 U.S.

837, 25 L.ed 1081; Terrell v. Allison, 21

Wall. 289, 22 L.ed 634;

2. The alterations in the escrow in-

structions manifest in the Order and Writ

of October 31, 1973, are beyond the power

Or jurisdiction of this Court. Goodman v.

Newzona Investment Co., 101 Ariz. 470, 421

P.2d 318 (1967). Inasmuch as neither the

Order nor the Writ can exceed the judgment

on which they are based, Terrell v. Allison,

Supra, either the judgment in favor of Buy-

ers is, or the Order and Writ are, void

because beyond the power Or jurisdiction

of this Court;

3. The right to enforcement of the man-

datory and self-executing terms of cancel-

lation paragraph 18 or 24 if justified by

the evidence, Harrison v. Fortlage, 161

U.S. 57, 40 L.ed 616, 16 S.Ct. 488, and

the right to present evidence that such

enforcement is justified, and to have judi-

cial findings upon such evidence as a mat-

ter of due process, Baltimore & Ohio Rail-

road Co. v. United States, 298 U.S. 349,

468

80 L.ed 1209, 56 S.Ct. 797, are rights se-

cured by the United States Constitution and

laws, Truax v. Corrigan, 257, U.S. 312, 66

L.ed 254, 42 S.Ct. 124;

4. The right to such enforcement depends

on the evidence which sustains this Court's

ruling that F. M. Cocke failed and refused

to comply with the agreement and escrow in-

structions.

If.

NEW OR ADDITIONAL EVIDENCE

A. THE ENFORCEMENT OF PARAGRAPH 18.

Buyers' Application For Writ of Assist-

ance, etc., at page 5, lines 1-8, states:

5. On November 27, 1972, plain-

tiffs, in compliance with the

judgment, contract and Escrow

No. 02013111-7, paid over to

counterdefendant, TRANSAMERICA

TITLE INSURANCE COMPANY, the sum

of $32,000 representing the bal-

ance of the second installment

of $64,000 due from plaintiffs

on January 2, 1969, after off-

setting against the interest

therein of FRANCIS M. COCKE the

sum of $32,000 for the damages

and costs awarded plaintiffs

against defendant FRANCIS M.

COCKE as set forth in the judg-

ment.

Attached to Buyers' Application as Ex-

hibit "K" is Buyers' letter to Transamerica

dated August 29, 1973, demanding compliance

by Transamerica with the judgment in favor

469

of Buyers. The first complete paragraph on

page 2 of such letter states:

As you also know, in early Janu-

ary, 1973, representatives of the

plaintiffs were in your office,

at which time they conferred with

Mr. Martin, to whom this escrow

was then assigned. And, at that

time the plaintiffs deposited with

Transamerica Title additional

funds which’ were then deemed nec-

essary by the plaintiffs and the

agent of Transamerica Title to

comply with the terms of the con-

tract and escrow involved in this

case in the event Mr. Cocke's

appeal was untimely, as it was

ultimately decided to be.

These statements estaodlish that on Novem-

ber 27, 1972, and in early January, 1973,

Buyers and Transamerica agreed between

themselves that Buyers had not yet com-

plied with the agreement and escrow in-

structions of October 9, 1968.

By letter dated March 6, 1969, Trans-

america notified Buyers that they "must

comply with all of the terms of the escrow

on or before March 19, 1969, ...".

Copies of such letter and the enclosed no-

tice of cancellation signed on March 5,

1969, by F. M. Cocke are attached hereto

as Exhibit A.

It is well settled that expressions by

a party to an escrow agreement, particular-

ly where still in the executory state, as

here, of mere willingness and ability to

comply are immaterial to the question of

actual compliance. 28 Am Jr 2d, Escrow,

470

Sections 21, 22, 24; 30A CJS, Escrows,

Sections 10(a) and 10(b).

QUESTION NO. 1

In the light of this new or additional

evidence, and as a matter of fact and law,

upon what specific grounds, if any there be,

can it now be held that the escrow did not

become cancelled upon close of business

March 19, 1969, by the mandatory and self-

executing terms of paragraph 18?

B. THE ENFORCEMENT OF PARAGRAPH 24.

Fine print paragraph 24 of the escrow

instructions specifies that in the event of

the inability or unwillingness of the es-

crow agent to comply with the instructions,

or the unwillingness of Transamerica to

issue a title policy, all documents execu-

ted by one party only, which includes the

deeds, shall be returned to such party.

The Order of October 31, 1973, at page 2,

lines 5-13, establishes such unwillingness

of the escrow agent to comply and such un-

willingness of Transamerica to issue its

title policy. By letter dated March 10,

1969, the escrow agent demonstrated its

inability or unwillingness to comply with

the escrow instructions by notifying Sellers

that Buyer was in compliance therewith. It

is now admitted that they were not in com-

pliance on March 10, 1969. (See Enforce-

ment of Paragraph 18, above.)

QUESTION NO. 2

In view of this new and additional

evidence of the early and recent inability

Or unwillingness of the escrow agent to

comply and of Transamerica to issue its

471

policy, and as a matter of fact and law,

upon what specific grounds, if any there be,

can it now be held that the trustee Bank's

deed and F. M. Cocke's deeds should not be

promptly returned to them in accordance with

the mandatory and self-executing terms of

paragraph 24?

C. ALTERATIONS IN PARAGRAPH 24.

Paragraphs 1 and 2 under I above are in-

corporated herein by this reference.

As pointed out in "B" just above, in the

event of the unwillingness of the escrow a-

gent and of Transamerica as specified by

paragraph 24, the mandatory and self-execut-

ing terms specify that the deeds shall be

returned to the party who executed same.

The Order at page 5, line 27, to page 6,

line 1, and the Writ at page 2, lines 16-26,

order that, now that such unwillingness has

been established, such deeds be delivered

to Minnesota Title instead of to the trustee

Bank and to F. M. Cocke.

QUESTION NO. 3

In view of the alteration of paragraph

24 ordered by the Order and Writ, and as a

matter of law, upon what grounds, if any

there be, can it now be held, since neither

the Order nor the Writ can exceed the judg-

ment, that none of such three documents is

void on its face for lack of jurisdiction

to alter the terms of paragraph 24?

D. TRANSAMERICA INDISPENSABLE.

On November 13, 1973, F. M. Cocke filed

an Amendment to his earlier motion to set

aside the Order. Such Amendment, from

472

page 1, line 30, to page 2, line 20, is

hereby incorporated herein by this refer-

ence.

That portion of the Order which admits

and so establishes that the relief sought

by Buyers' Complaint of April 22, 1969,

could not be granted in the absence of the

escrow agent and title insurer is found at

page 3, line 5, to page 4, line 12. The

same admission is found in the Writ at page

2, lines 16-22.

QUESTION NO. 4

In view of this new evidence, addition-

al to that appearing on the face of Buyers'

Complaint, and as a matter of fact and law,

upon what grounds, if any there be, can it

now be held that Transamerica was not an

indispensable party to Buyers' action for

specific performance of the agreement, as

holder of Sellers’ deeds and Buyers' money

and mortgages and as title insurer?

E. EVIDENCE OF F. M. COCKE'S FAILURE

TO COMPLY AND REPUDIATION OF THE

TRUSTEE BANK'S DEED.

The judgment in favor of Buyers is at-

tached to the Writ of Assistance as Exhibit

A. At page 4, lines 11-25, the judgment

recites the failure and refusal of F. M.

Cocke to perform the duties assumed by him

in the agreement and escrow instructions.

At page 5, line 25, to page 6, line 10,

the judgment repudiates the trustee Bank's

deed to the trust half-interest in Parcel

1, and purportedly places on F. M. Cocke

the burden of conveying all of Parcel 1 to

Buyers. However, the instructions accom-

panying the deposit of the trustee Bank's

473

deed into escrow were accepted by all par-

ties as part of the escrow instructions.

It has never been disputed that F. M. Cocke's

deeds were deposited into escrow by the brok-

er on or about January 1, 1969, bearing the

exact metes and bounds descriptions contain-

ed in the judgment, but subject to existing

rights of way and easements and subject to

the Notice of Lis Pendens filed in early

1966 by the State of Arizona in its eminent

domain proceeding, which was pending through-

out 1969. In view of the Lis Pendens, there

was no basis whatsoever for Transamerica's

announced unwillingness on March 20, 1969,

to issue its title policy on Parcel 2 be-

cause of the $6.00 Triangle, so putting an

end to the agreement under paragraph 24,

unless already cancelled at close of busi-

ness the day before under paragraph 18. It

has never been disputed that the only objec-

tion to the deed to F. M. Cocke's Parcel 2

was Transamerica's objection, later abandon-

ed, to the $6.00 Triangle. The metes and

bounds descriptions in the judgment also

admit that Buyers' demand, never retracted,

for a warranty deed from F. M. Cocke and the

trustee Bank to Parcels 1A and 2A, as a con-

dition precedent to payment of the $64,000

represented by the unacceptable personal

checks, constituted, without more, repudi-

ation of the agreement.

QUESTION NO. 5

Other than his failure to join in the

repudiation of the trustee Bank's deed and

instructions, and as a matter of fact and

law, upon what act or failure to act of

F. M. Cocke did this Court rule that he

failed to perform the duties assumed by

him under the agreement and instructions

of October 9, 1968?

Respectfully submitted this

3rd day of December, 1973.

/s/ L. Alton Riggs, Jr.

By: L. Alton Riggs, Jr.

1540 E. University, Suite 200

Mesa, Arizona 85203

Attorney for Defendant

Francis M. Cocke

474

475

(Hand-delivered July 29, 1974)

NOTICE

TO: THE SHERIFF OF MARICOPA COUNTY

RE: LAND IN POSSESSION OF F. M. COCKE

Arizona Revised Statutes Section

11-450 makes it clear that the letter

dated July 11, 1974, dictated by Don

Kenney and signed by Sgt. Carlson, did not

discharge or excuse the Sheriff from lia-

bility for neglect or misconduct in any

actual seizure of possession from F. M.

Cocke by the deputies or in any formal

placing of the land in the possession of

C. W. Jackson Company. This company is

not mentioned in the process served on

F. M. Cocke or in the letter of July 11,

1974. The Kenney letter also falsely

states that plaintiffs furnished warranty

deeds from Minnesota Title and First

National Bank of Arizona (See ARS 33-402).

This process included three documents:

(1) the judgment entered in case C-222472

by Irwin S. Cantor on September 27, 1972,

in favor of plaintiffs James Stewart Com-

pany, M. Seth Horne and Maurine D. Horne,

(2) the Order Granting Writ of Assistance,

etc., entered October 31, 1973, and (3)

the Writ itself. Plaintiffs themselves

have never been in possession, having

Since October 31, 1973, never obtained a

further court order that they had complied

with the contract and escrow instructions,

which is the condition precedent to close

of the escrow and seizure of possession

expressly and repeatedly set forth in the

Order and Writ.

r

476

It has long been settled, as pointed

out in Schuster v. Merrill (1940) 56 Ariz.

114, 106 P.2d, that "ALL PROCESS AND ORDERS

REGULAR ON THEIR FACE AND ISSUED BY COMPE-

TENT AUTHORITY," contained in ARS Section

11-447, means process which is legal in

form and contains nothing to notify or

fairly apprise any one that it was issued

without authority.

The long standing and fundamental

rule as to modification of a contract by

a court is well stated in Goodman v. New-

zona Investment Co. (1966), 101 Ariz. 470,

421 P.2d 318:

. - eIt is not within the province

or power of the court to alter,

revise, modify, extend, rewrite or

remake an agreement. Its duty is

confined to the construction or

interpretation of the one which

the parties have made for them-

selves. Graham County Electric

Co-op, Inc. v. Town of Safford,

95 Ariz. 174, 383 P.2d 169. Where

the intent of the parties is ex-

pressed in clear and unambiguous

language, there is no need or room

for construction or interpretation

and a court may not resort thereto.

Neale v. Hinchcliffe, 21 Ariz. 452,

189 P. 1116.

The judgment beginning at page 8,

line 24, states:

IT IS FURTHER ORDERED, ADJUDGED

AND DECREED that should Defendant

FRANCIS M. COCKE not fully perform

as ordered hereby, upon compliance

with all necessary conditions by

Plaintiffs, this judgment shall

477

serve to divest the Defendant

FRANCIS M. COCKE of his interest

in and to the title to the subject

property, said title to be vested

in the Plaintiffs, all in accord-

ance with Rule 70 of the Arizona

Rules of Civil Procedure, subject

to the Plaintiffs' compliance with

the terms of said contract as

modified hereby.

The Order beginning at page 2, line 5,

points to the unwillingness of Transamerica

to close the escrow in accordance with the

contract and escrow instructions as modi-

fied by the judgment, or in any manner act

in connection with said escrow or the

closing thereof. Without more, this state-

ment fairly apprises any one that Trans-

america was unwilling to issue its title

policy or close the escrow as modified.

Beginning at page 2, line 14, the

Order states:

IT FURTHER APPEARING to the Court

that the TITLE INSURANCE COMPANY

OF MINNESOTA, a Minnesota corpora-

tion, has indicated its willing-

ness to be appointed pursuant to

order of this Court to act for and

in the place and stead of the de-

fendant TRANSAMERICA TITLE CO.

for the purpose of closing said

Escrow No. 02013111-7 in accordance

with the contract and escrow in-

structions entered into on October

9, 1968, between James Stewart Co.

as buyer and Francis M. Cocke and

Joan H. Cocke as sellers, as modi-

fied by the Second Amended Judgment

entered and filed by this Court on

September 27, 1972, and such

ee

478

instructions as are issued by the

Court pursuant to this proceedings;

and. ..

It is clear from this statement that the

actual escrow agreement between the parties

was rewritten into a completely new escrow

agreement, with Minnesota Title as escrow

agent.

The Order beginning at page 2, line

29, states that plaintiffs are entitled

to have the escrow closed in accordance

with the contract and escrow instructions

as modified, not as entered into by the

parties. Further, the Order refers to the

actual agreement between the parties, as

modified by the judgment or the Order at

page 3, line 17, page 4, line 4, page 4,

line 28, and at page 5, line 19.

Contradictory to all these references

to the actual contract and escrow instruc-

tions as modified, is the following state-

ment at page 3, lines 20-28, of the Order,

specifying that the rights, privileges

and duties of Minnesota Title are those,

and only those, actually agreed to by the

parties:

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that said TITLE INSURANCE

COMPANY OF MINNESOTA, a Minnesota

corporation, be, and it is hereby,

substituted as escrow agent with

all of the rights, privileges and

duties of the defendant TRANSAMERICA

TITLE CO. for the purpose of pro-

ceeding with and closing Escrow No.

02013111-7, all as set forth in the

aforesaid contract and escrow in-

structions entered into on October

9, 1968, between James Stewart Co.

479

as buyer and Francis M. Cocke

and Joan H. Cocke as sellers;

and. ..

Likewise the Writ of Assistance in

its first paragraph states that plaintiffs

were entitled to specific performance by

F. M. Cocke (only one of the four princi-

pal parties) of the actual contract and

escrow instructions entered into on October

9, 1968, but refers to such contract and

escrow instructions as modified by the

judgment and Order at page 2, line 6,

page 2, line 25, and at page 2, line 3l.

The condition precedent to close of

escrow and any taking of possession by

plaintiffs is repeatedly stated in the Order

and Writ as compliance by plaintiffs with

the contract and escrow instructions as

modified by the judgment and Order, but

the rights, privileges and duties of Minn-

esota Title to close the escrow are ex-

pressly limited by the Order at page 3,

lines 20-28 (quoted hereinabove at page 3)

to those set forth in the actual contract

and escrow instructions. These contradic-

tory specifications, without more, consti-

tute sufficient warning that the judgment,

Order and Writ modified the actual agree-

ment of the parties without authority, and

that any determination by the Sheriff that

the limitation on Minnesota's powers is to

be stricken or ignored has been made at

his own risk.

Attached to this Notice are copies

of Arizona Revised Statutes Sections 33-

402, 11-450, and 11-447. Also attached

are copies of Schuster v. Merrill, 36A

Words and Phrases, Permanent Edition,

"Regular On Its Face", Pankewicz v. Jess,

quoted by Words and Phrases, and Goodman

480

v. Newzona, in part.

Dated this twenty-ninth day of July,

1974.

/s/ Francis M. Cocke

FRANCIS M. COCKE

1320 South Priest Road

Tempe, Arizona 85281

(602) 967-0734

STATE OF ARIZONA )

: ss.

County of Maricopa)

This instrument was acknowledged be-

fore me this 29th day of July, 1974, by

FRANCIS M. COCKE.

In witness whereof I herewith set my

hand and official seal.

/s/ Vera B. Arnold

Notary Public

My commission expires:

June 16, 1975

7

481

Letter from:

OFFICE OF THE MARICOPA COUNTY ATTORNEY

August 1, 1974

Kelly & Corbin

Attorneys at Law

3003 North Central

Suite 2300

Phoenix, Arizona 85012

Re: James Stewart Co. v. Cocke;

No. C-222472

Gentlemen:

Please be advised that this office

represents the Maricopa County Sheriff's

department as special counsel. The

sheriff's office has requested that I re-

view the Writ of Assistance signed by

Judge Cantor on October 3, 1973, in the

above case.

Mr. Cocke, the defendant in the above

action, has gone to Sheriff Blubaum him-

self; Judge Boyd in Tempe; and has threat-

ened the sheriff's office directly with

civil suit if the sheriff's office pro-

ceeds to carry out the Writ of Assistance.

Mr. Cocke claims that the condition prece-

dent required of the plaintiff according

to Judge Cantor's orders specifically com-

mencing at line 27 on page two of the writ

in question has not been complied with.

We have advised Mr. Cocke that it is

not the function of the sheriff's office

to ascertain or determine the validity of

482

the writ, however, in view of the above set

forth condition precedent which is clearly

on the face of the writ, the sheriff's

office feels that they must have substan-

tiation from your office that the condi-

tion required by the writ has been com-

plied with. Further, we request that you

furnish the sheriff's office a letter of

indemnity along with the evidence that you

furnish to substantiate the completion of

the condition precedent. The sheriff's

office will continue to keep the peace on

the property in question but can do noth-

ing further to enforce the writ until such

time as they have the items requested here-

in. Would you please furnish the original

of your indemnity letter and whatever evi-

dence you might have to Lt. Pena, Civil

Division, and send a copy to my office at

237 East Virginia, Phoenix, Arizona 85004.

Should you have any questions, please do

not hesitate to call me at 254-5311.

Thank you.

Sincerely,

MOISE BERGER, COUNTY ATTORNEY

Donald J. Kenney

Special Counsel - Sheriff

DJK:mt

cc: Francis Cocke

—_—_——

483

IN THE SUPERIOR COURT

OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

JAMES STEWART CO., an )

Arizona corporation; M.)

SETH HORNE; and MAURINE)

D. HORNE, his wife, )

)

Plaintiffs,) No. C-222472

ACCOUNT OF COURT-

APPOINTED OFFICER;

PETITION FOR

APPROVAL AND

APPLICATION FOR

INSTRUCTIONS AND

FOR DISTRIBUTIONS.

vs.

FRANCIS M. COCKE, a

divorced man; and JOAN

H. COCKE, a divorced

woman,

Defendants,

vs.

Filed:

August 7, 1974

TRANSAMERICA TITLE IN-

SURANCE COMPANY OF

ARIZONA, an Arizona

corporation,

RR ed

Additional Defendant)

on Counterclaim.)

)

Petitioner, TITLE INSURANCE COMPANY

OF MINNESOTA, a Minnesota corporation,

maintaining its offices at 3003 North

Central Avenue, Phoenix, Arizona 85012,

and the court-appointed officer pursuant

to an order of this Court duly made and

entered on October 31, 1973, which has

acted and is acting pursuant to a Writ

of Assistance issued by the above-entitled

Court pursuant to said order of October 31,

1973, respectfully states unto the Court

as follows:

-_

484

1. Pursuant to the Writ of Assistance

issued by the above-entitled Court command-

ing Petitioner to obtain possession of the

files relating to TRANSAMERICA TITLE IN-

SURANCE CO. Escrow No. 0201311-7, including

all documents, deeds, deposits and instruc-

tions constituting the files of said escrow

and proceed to close said escrow, your

Petitioner obtained said files and pro-

ceeded with the closing of the escrow as

commanded by the Writ of Assistance in

accordance with the Contract and Escrow

Instructions entered into on October 9,

1968 between JAMES STEWART CO., as buyer,

and FRANCIS M. COCKE and JOAN H. COCKE,

as sellers, as modified by the Judgment

dated September 27, 1972, and the order

dated October 31, 1973, granting the

Application for Writ of Assistance, or,

Alternatively, For An Order Requiring

Compliance With Judgment Dated September

27, 1972, Or For A Supplemental Biil

Enforcing Said Judgment; that said escrow

was identified in Petitioner's office as

Escrow No. 20-000,616.

2. In connection with the closing of

said escrow, your Petitioner effected the

transfer of legal title of the real prop-

erty in question herein to the plaintiffs,

subject to compliance by the plaintiffs

with the aforesaid Contract and Escrow

Instructions entered into on October 9,

1968, between JAMES STEWART CO., as buyer,

and FRANCIS M. COCKE and JOAN H. COCKE.

as sellers, as modified by the Judgment

entered and filed by this Court on

September 27, 1972 and the Order of

October 31, 1973; that plaintiffs did

comply with the aforesaid Contract and

Escrow Instructions entered into on

October 9, 1968 and your Petitioner

closed the said escrow on December 20,

1973, at which time title to the real

485

estate, the subject of the Contract and

Escrow Instructions entered into on Octo-

ber 9, 1968, was transferred to JAMES

STEWART CO. and M. SETH HORNE and MAURINE

D. HORNE, his wife; that attached hereto,

marked Exhibit "A" and incorporated herein

for reference is a copy of the Escrow

Settlement Statement which reflects the

charges against and credits to the plain-

tiffs herein as buyers and the charges

against and credits to the said FRANCIS

M. COCKE and JOAN H. COCKE, as sellers,

according to their respective interests

including, but not limited to, the re-

ceipt of funds paid outside of escrow by

the plaintiffs, amounts transferred from

the escrow opened by TRANSAMERICA TITLE

INSURANCE COMPANY as No. 02013111-7; pur-

chase money mortgages received from plain-

tiffs payable to FRANCIS M. COCKE and

JOAN H. COCKE, according to their respec-

tive interests, costs and attorneys' fees

charged against the interest of FRANCIS

M. COCKE by TRANSAMERICA TITLE INSURANCE

CO. per Judgment of this Court, damages

due plaintiffs, together with interests

and costs of suit in the aggregate amount

of $52,054.58 due and owing pursuant to

the Judgment in favor of the plaintiffs

dated December 27, 1972, and an advance to

FRANCIS M. COCKE on January 13, 1969 of

$20,000.00 paid by TRANSAMERICA TITLE IN-

SURANCE COMPANY; that your Petitioner also

paid to ARLEIGH H. BURTON as a part of

closing said escrow on behalf of FRANCIS

M. COCKE and JOAN H. COCKE according to

their respective interests, $10,000.00

of the total sum of $17,971.97 for the

real estate commissions, including in-

terest at six percent per annum as pro-

vided by said Contract and Esrow Instruc-

tions; that as a result of said closing,

there remained a deficiency in closing

486

fees and costs against the interest of

FRANCIS M. COCKE in the amount of $8,240.80;

that in connection with the closing of said

escrow, your Petitioner remitted to JOAN H.

COCKE the sum of $21,210.84; that also in

connection with said closing, your Peti-

tioner granted two easements pursuant to

the Contract and Escrow Instructions dated

October 9, 1968, copies of which are

attached hereto and marked Exhibits "B"

and "C", respectively; that attached here-

to and marked Exhibit "D" is a copy of the

deed by which your Petitioner transferred

legal title to the subject property to

plaintiffs.

3. That the Contract and Escrow In-

structions entered into between JAMES

STEWART CO., as buyer, and FRANCIS M.

COCKE and JOAN H. COCKE, as sellers, pro-

vided the buyer with the right and privi-

lege to make additional payments to the

unpaid balance of the purchase money

mortgage at any time following January 2,

1969; that on July 1, 1974, plaintiffs

prepaid the full amount of the unpaid

balance of the purchase money mortgages

received by your Petitioner on behalf of

FRANCIS M. COCKE and JOAN H. COCKE, in

connection with the closing of said

escrow, i.e., $420,238.15, plus interest

in the amount of $13,253.31, through July

1, 1974; that against the interest of

FRANCIS M. COCKE in said proceeds, your

Petitioner charged the shortage in clos-

ing fees and costs of $8,240.80, leaving

the net received as a result of the pre-

payment by plaintiffs of $425,520.66.

4. On July 10, 1974, your Petitioner

paid in full a mortgage due the Federal

Land Bank Association, on the real estate

the subject of the Contract and Escrow

487

Instructions entered into on October 9,

1968, in the sum of $34,802.88, for the

purpose of clearing the title for the

subject property to the plaintiffs; that

with respect to the remaining proceeds,

i.e., $390,447.78, your Petitioner has

deposited substantially all of said pro-

ceeds in certificates of deposits, or pass

book savings accounts according to the re-

spective interests of FRANCIS M. COCKE and

JOAN H. COCKE.

5. Attached hereto and marked Ex-

hibits "E" and "F", and incorporated here-

in by reference, are copies of the escrow

settlement documents reflecting the amounts

due FRANCIS M. COCKE and JOAN H. COCKE as

a result of the prepayment by plaintiffs

on July 1, 1974, in the respective amounts

of $278,216.02 and $94,259.79, together

with the commission due ARLEIGH H. BURTON,

charged against the respective interests

of FRANCIS M. COCKE and JOAN H. COCKE.

6. In connection with the aforesaid

prepayment, your Petitioner pursuant to

the Writ of Assistance issued by this

Court on October 31, 1973, executed on

behalf of FRANCIS M. COCKE and JOAN H.

COCKE, satisfaction of the mortgages given

by plaintiffs at the initial closing of

the escrow on December 20, 1973.

7. Pursuant to the Writ of Assist-

ance, Or, Alternatively, Order Requiring

Compliance With Judgment Dated December

27, 1972, Or Supriemental Bill Enforcing

Said Judgment as issued out of this Court

on October 31, 1973, your Petitioner has

faithfully performed all things commanded

of it by the above-entitled Court, includ-

ing but not limited to obtaining the files

relating to TRANSAMERICA TITLE CO. Escrow

488

No. 02013111-7, the closing of said escrow

on December 20, 1973, the preparation of

all documents and deeds necessary to

effect the said closing, accounting for

the fees and charges to and for the plain-

tiffs and FRANCIS M. COCKE and JOAN H.

COCKE according to their respective in-

terests, receiving and accounting for the

payment in full on July 1, 1974 and de-

positing said proceeds, and your Petitioner

now requests an order of the Court approv-

ing all acts and things done by it or

taken by it for and on behalf of FRANCIS

M. COCKE and JOAN H. COCKE, according to

their respective interests and the further

order of the Court providing for distri-

bution of the proceeds to FRANCIS M. COCKE,

JOAN H. COCKE and ARLEIGH R. BURTON,

according to their respective interests.

WHEREFORE, your Petitioner prays for

an order of the Court as follows:

1. Approving the closing of the

escrow as alleged herein including but not

limited to the following:

(a) The settlement of the escrow

as reflected by Exhibit "A" attached

hereto;

(b) The disbursement of proceeds

of the sale to JOAN H. COCKE of $21,210.84;

(c) The easements granted under

the Contract and Escrow Instructions

dated October 9, 1968, copies of which

are attached hereto as Exhibits "B" and

“—"o

(d) The deed executed by your

Petitioner on behalf of FRANCIS M. COCKE,

copy of which is attached hereto as

Exhibit "E”.

489

2. Approving the acceptance of the

prepayment by the plaintiffs, JAMES STEWART

CO. and SETH HORNE and MAURINE D. HORNE,

and the satisfaction of mortgages in con-

nection therewith;

3. Approving the deposit of funds

received by your Petitioner in certificates

of deposits and savings accounts pending

distribution of same;

4. Approving all other acts and

things done by your Petitioner on behalf

of the sellers FRANCIS M. COCKE and JOAN

H. COCKE in connection with the Contract

and Escrow Instructions dated October 9,

1968, and the prepayment of the mortgages

received from the buyers JAMES STEWART CO.

and M. SETH HORNE and MAURINE D. HORNE,

on September 20, 1973; and

5. For such other and further relief

as to the Court may seem just, proper and

necessary in the premises.

Respectfully submitted this 7th day

of August, 1974.

KELLY AND CORBIN

By /s/ Hubert E. Kelly

Hubert E. Kelly

550 West Washington

Phoenix, Arizona 85003

Attorneys for Plaintiffs

490

IN THE SUPERIOR COURT

OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

JAMES STEWART CO., an

Arizona corporation; M.

SETH HORNE; and MAURINE

D. HORNE, his wife,

Plaintiffs,

vs.

FRANCIS M. COCKE, a

divorce man; and JOAN

H. COCKE, a divorced

woman,

Defendants,

vs.

TRANSAMERICA TITLE IN-

SURANCE COMPANY OF

ARIZONA, an Arizona

corporation,

Additional Defendant

on Counterclaim.

THE STATE OF ARIZONA TO:

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

NO. C=222472

ORDER TO

SHOW CAUSE

Filed:

August 7, 1974

TRANSAMERICA TITLE INSURANCE COMPANY

OF ARIZONA, an Arizona corporation,

by and through its attorneys, Powell

B. Gillenwater, Browder and Gillen-

water, 3003 North Central Avenue,

Suite 2304, Phoenix,

Arizona 85012

JOAN H. COCKE, by and through her

attorney, Loretta Whitney, 603 Luhrs

Building, Phoenix, Arizona 85003

491

DOROTHY H. COCKE and ELIZABETH C.

COCKE, by and through their attorney,

George Sorenson, Jr., 609 Luhrs Build-

ing, Phoenix, Arizona 85003

FRANCIS M. COCKE, by and through his

attorney, L. Alton Riggs, Jr., 48

North MacDonald Street, Mesa,

Arizona 85201, and FRANCIS M. COCKE,

In Proper, 1320 South Priest Road,

Tempe, Arizona,

GREETINGS >:

TITLE INSURANCE COMPANY OF MINNESOTA,

a Minnesota corporation, having filed its

verified Account of Court-Appointed offi-

cer; Petition for Approval and Application

for Instructions and for Distributions,

and the Court having read and considered

said verified Petition, and good cause

appearing therefor,

NOW THEREFORE, IT IS ORDERED that

each of the above named parties be and

appear in Division 7 of this Court on the

28th day of August, 1974, at the hour of

4:00 o'clock, P.M., then and there to

show cause if any they may have why the

relief prayed for in said Petition should

not be granted.

DONE IN OPEN COURT this 7th day of

August, 1974.

/s/ Irwin Cantor

Judgeof the Superior Court

492

IN THE SUPERIOR COURT

OF THE STATE OF ARIZONA

JAMES STEWART CO., an

Arizona corporation;

M. SETH HORNE and

MAURINE E. HORNE, his

wife,

No. C=222472

F. M. COCKE'S

RESPONSE TO

ORDER TO SHOW

CAUSE AND MOTION

TO VACATE OR

SET ASIDE ORDER

GRANTING WRIT OF

ASSISTANCE, AND

THE WRIT

ITSELF

Plaintiffs,

Vv.

)

)

)

)

)

)

)

)

FRANCIS M. COCKE, a )

divorced man; and JOAN )

H. COCKE, a divorced )

woman, )

Filed:

)

)

)

)

)

)

)

)

Defendants,) august 28, 1974

Vv.

TRANSAMERICA TITLE

INSURANCE COMPANY OF

ARIZONA, an Arizona

corporation,

Additional Defendant)

on Counterclaim. )

)

Comes now Francis M. Cocke and res-

ponding to the Order to Show Cause en-

tered August 7, 1974, moves the Court to

vacate or set aside the Order Granting

Writ of Assistance, etc., and the Writ

itself, entered October 31, 1973, upon

the following grounds.

l. The trial court hearing on

issuance of the Order Granting Writ was

held October 12, 1973, at which time

jurisdiction remained in the Court of

=

493

Appeals, and the Order Granting Writ, and

the Writ, were and are therefore void on

the face of the record, and were and are

without force or effect. The significant

dates are as follows:

Sep. 7, 1973

Sep.10, 1973

Oct. 2, 1973

Oct.12, 1973

Oct.17, 1973

Buyers filed Application

to the Superior Court

for Writ of Assistance,

and said court entered

its Order to Show Cause

why the Writ should not

be granted.

Buyers filed in the

Arizona Court of Appeals

their Motion to Refer

File back to the

Superior Court.

Appellate court denied

Buyers' Motion to Re-

fer File, and granted

Transamerica's motion

to dismiss F. M.

Cocke's appeal as to

Transamerica, which in-

volved Buyers' rights.

Hearing held in superior

court on Buyers' Motion

for Writ of Assistance.

F.M. Cocke made no

appearance, choosing

not to so prejudice

his rights in the

appellate court.

Last day for Buyers to

file in appellate court

for rehearing on denial

of their Motion to Re-

fer File, and last day

for F. M. Cocke to file

494

for rehearing in

appellate court on dis-

missal of his appeal as

to Transamerica.

Oct.30, 1973 Arizona Court of Appeals

returned file to

superior court.

Oct.31, 1973 Order Granting Writ of

Assistance, stating

that it was based on

the Oct. 12, 1973 hear-

ing, entered in trial |

court.

No hearing was held after jurisdiction

was returned to the superior court. The

entry of the Order Granting Writ, without

a hearing within the jurisdiction of the

Court, was wanting in due process of law.

2. The Order Granting Writ, and the

Writ, were and are void on their faces,

being in violation of ARS Title 6, Chapter

7, Section 6-811, and so beyond the power

or jurisdiction of the Court, and such

Order and Writ were and are without force

or effect.

Section 6-811 specifies that the term

"escrow agent" shall not include any per-

son doing any of the acts specified in

paragraph 1 of Section 6-801, which de-

fines "Escrow", under the order of a

court.

The Order Granting Writ, at page 3,

lines 20-28, states that it is ordered

that Title Insurance Company of Minnesota

be, and it is hereby, substituted as

escrow agent with all the rights, privi-

leges and duties of Transamerica for the

purpose of proceeding with and closing

495

the escrow, all as set forth in the escrow

agreement entered into on October 9, 1968

(without modification). The entries of

the Order Granting Writ on October 31,

1973, and the Writ, being beyond the power

or jurisdiction of the Court, were wanting

in due process of law.

3. The judgment entered September 27,

1972, and the Order Granting Writ, and the

Writ, were served as purported process on

F. M. Cocke by county sheriff's deputies

on or about July 1l, 1974. Each of these

documents shows on its fact that it was

entered in attempted enforcement of a con-

tract as modified by such judgment or

order, and such process was and is there-

fore void on its face and was wanting in

due process of law, such modification not

being within the province or power of the

Court.

All three of the separate judgments

entered in C-222472 against F. M. Cocke,

in favor of Joan H. Cocke, Transamerica,

and the Buyers, as well as the orders or

judgments against him and in favor of

Joan H. Cocke entered in case D-89833 sub-

sequent to the final judgment of March,

1967 in that case, have been sought to

be carried into execution by the C-222472

judgment entered September 27, 1972, in

favor of the Buyers, and by the Order

Granting Writ of Assistance, and the Writ

itself, entered in C-222472 on October 31,

1973. The service of such three documents

was in purported execution of such

C-222472 and D-89833 judgments and orders,

and the delivery thereof to the sheriff

for execution was wanting in due process

of law.

Such process recites at least ten

he eee

—_-

496

times that the contract sought to be en-

forced thereby has been modified by the

judgment entered September 27, 1972 or

the Order entered October 31, 1973, or

both, so establishing such modifications,

and that such process was and is therefore

beyond the Court's jurisdiction and with-

out force or effect, being void on its

face, because on its face it is not sub-

ject to execution under ARS Section ll-

447. It is the process itself which modi-

fies the agreement entered into by the

parties, and no court has authority to

issue process which modifies a contract.

For the foregoing reasons this de-

fendant respectfully moves this Honorable

Court to vacate or set aside the Order

Granting Writ of Assistance, etc., and the

Writ itself, entered October 31, 1973.

Respectfully submitted this 28th

day of August, 1974.

By /s/ L. Alton Riggs, Jr.

L. Alton Riggs, Jr.

1540 East University, Suite 200

Mesa, Arizona 85203

Attorney for Defendant

Francis M. Cocke

ee re we mee oe

497

IN THE SUPERIOR COURT

OF THE STATE OF ARIZONA

IN AND FOR

THE COUNTY OF MARICOPA

JAMES STEWART CO., an

Arizona corporation;

M. SETH HORNE and

MAURINE D. HORNE, his

wife,

Plaintiffs,

Vs.

FRANCIS M. COCKE, a

divorced man; and JOAN

H. COCKE, a divorced

woman,

Defendants,

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

vs. )

)

TRANSAMERICA TITLE IN-)

SURANCE COMPANY OF )

ARIZONA, an Arizona )

corporation, )

)

Additional Defendant)

on Counterclaim)

of F. M. Cocke.)

)

Filed: November 27, 1974

NO. C=222472

NOTICE OF APPEAL

TO COURT OF APPEAIS,

DIVISION I

Notice is hereby given that the above-

named defendant-counter and cross claimant

Francis M. Cocke appeals to the Court of

Appeals of the State of Arizona from the

following orders and judgments made and

entered in the above entitled court in the

above entitled action:

= _ a

498

l. The Order Approving Account of

Court-Appointed Officer and Petition for

Approval and Application for Instructions

and for Distributions entered September

30, 1974;

2. The Writ of Assistance, or, Alter-

natively, Order Requiring Compliance with

Judgment Dated September 27, 1972, or

Supplemental Bill Enforcing Said Judgment,

entered October 3l, 1973;

3. The Order Granting Application

for Writ of Assistance, or, Alternatively,

Requiring Compliance with Judgment Dated

September 27, 1972, or for a Supplemental

Bill Enforcing Said Judgment, entered

October 31, 1973;

4. The Second Amended Judgment in

favor of plaintiffs and against counter-

Claimant Francis M. Cocke entered September

27, 1972, including Plaintiff's Amended

Proposed Findings of Fact and Conclusions

of Law attached to said Judgment;

5. The Judgment in Favor of Cross-

Defendant Joan H. Cocke and Against Cross-

Claimant Francis M. Cocke, entered Novem-

ber 10, 1970;

6. The Summary Judgments in favor of

counter-defendant Transamerica Title In-

surance Company and against counter-claim-

ant Francis M. Cocke entered November 10,

1970, and the Order Modifying said Judgment

of November 10, 1970, and Judgment on Super-

sedeas and Cost Bonds, entered November 6,

1972; and

7. Each and every order merged in

any of the above orders and judgments.

499

As bond for costs on appeal, a cash-

ier's check in favor of the Clerk of the

Superior Court in the amount of $250.00

is filed herewith.

While it might appear that the appeal

of all judgments and orders included in

numbered paragraphs 2 through 7 above at

this time is untimely, said appeal should

not be deemed to be untimely for the reason

that the September 27, 1972, judgment which

embodies and attempts to enforce all of

the prior judgments is a conditional judg-

ment and hence not a final judgment for the

reasons more particularly set forth below.

The last sentence of the September 27,

1972, judgment states:

"IT IS FURTHER ORDERED, ADJUDGED

AND DECREED that should Defendant

FRANCIS M. COCKE not fully perform

as ordered hereby, upon compliance

with all necessary conditions by

Plaintiffs, this judgment shall

serve to divest the Defendant

FRANCIS M. COCKE of his interest

in and to the title to the subject

property, said title to be vested

in the Plaintiffs, all in accord-

ance with Rule 70 of the Arizona

Rules of Civil Procedure, subject

to the Plaintiffs' compliance with

the terms of said contract as

modified hereby.

(emphasis added)

As stated, the force and effect of said

judgment on the interest in and title to

the property is conditioned on the plain-

tiffs' compliance not with the actual con-

tract made by the parties but by said con-

tract as modified by the judgment.

ee ee ee

eee ee ee

500

The conditions were not complied

with by plaintiffs as late as October 31,

1973, because the Order Granting Writ,

entered on October 31, 1973, after finding

that Transamerica was no longer willing to

act in any manner in connection with the

escrow as modified by the judgment,

ordered Minnesota Title as an officer of

the court to effectuate the closing of

the escrow and the transfer of legal title

to the plaintiffs, subject to compliance

by the plaintiffs with the contract and

escrow instructions as modified by the

judgment entered on September 27, 1972,

and said order.

The Writ of Assistance itself command-

ed Minnesota Title to obtain the escrow

file from Transamerica and to proceed with

the closing of the escrow in accordance

with the contract and escrow instructions

as modified by the judgment and the order.

Accordingly, it was not until Septem-

ber 39, 1974, that the lower court de-

Cclared that the conditions required in the

September 27, 1972, judgment had been met.

Respectfully submitted this 27th day

of November, 1974.

/s/ L. Alton Riggs, Jr.

L. Alton Riggs, Jr.

Attorney for Francis M. Cocke

231 North Alma School Road

Mesa, Arizona 85201