"The effect of the appeal was to invest this court with all jurisdiction over the cause, and deprive the district court of any jurisdiction thereover. This is a well-established rule, and is directly recognized by our statute."
Later in the case of Jackson v. Lebanon Res. etc. Co.,19 Ariz. 443, 171 P. 997, the court stated:
"The said appeal as perfected did not have the effect of superseding the decree; hence the trial court did not lose jurisdiction over the same, either by operation of law, by act of the parties appealing, nor in fact, as the court expressly retained jurisdiction of the matter upon the face of the decree, for the purpose of enforcing the equities of the parties."
It would seem from these decisions that this court was committed to the view that the perfecting of an appeal did not divest the lower court of jurisdiction to vacate the judgment appealed from. However, in the case of Bryan v. InspirationCon. Cop. Co., 27 Ariz. 188, 231 P. 1091, the court, in referring to the effect of giving notice of appeal and filing the bond, said:
"These two acts result in a perfected appeal, a removal of the case to the appellate court, and a termination of the superior court's jurisdiction over it. . . ."
In 1926, in the case of Navajo Realty Co. v. County Nat.Bank, etc., 31 Ariz. 128, 250 P. 885, in passing on the authority of the trial court to enter a satisfaction of judgment after an appeal had been taken, we said: *Page 426
"When an appeal to this court has been perfected, the trial court loses all jurisdiction of each and every matter connected with the case, except in furtherance of the appeal, unless it is expressly given jurisdiction by statute. . . . It is obvious on a moment's reflection that this must be so; if it were not, parties could at their will render the judgments of this court nugatory, and its decrees a laughing stock."
This last decision, while not expressly overruling Sullivan v. Woods and Jackson v. Lebanon etc. Co., supra, does so in effect. In view, however, of the apparently conflicting decisions of this court and the fact that in none of them were the real merits of the proposition carefully considered, we have decided to examine the question upon its merits, uninfluenced by any previous expressions of opinion of this court.
Counsel for defendant has cited a number of cases upholding the right of the trial court to vacate a judgment while an appeal therefrom was pending in the Supreme Court. Among these the case which seems best to sustain his position in reasoning and logic is that of Chambliss v. Hass, 125 Iowa 484, 3 Ann. Cas. 16, 68 L.R.A. 126, 101 N.W. 153. Therein the court says:
"Nor do we see how the fact that an appeal has been taken and judgment affirmed before the order for new trial is entered can introduce any change in the relative rights or positions of the parties. As already suggested, the affirmance simply decides that the judgment was regularly and properly entered upon the case which the trial court then had before it, but leaves it exposed to the liability of a new trial, on proper showing therefor, precisely as if no appeal had been taken. Let us suppose, for instance, that an appeal had been promptly perfected, an affirmance ordered, and the judgment collected by execution, all within six months from the date of its rendition in the trial court, and thereafter and within one year the defendant had discovered indubitable *Page 427 proof that the recovery against him had been secured by gross fraud and perjury; could it be said that the affirmance and satisfaction of the judgment had made the statutory provision for new trial of no avail to him? If so, why? The law gave him the entire year in which to act, and an application made upon evidence discovered during the eleventh month is as timely as if it had been made during the first month. This issue which he now seeks to try has never been adjudicated by any court, and was in no manner considered or passed upon by the appellate tribunal, and the satisfaction of the judgment by execution cannot be considered an acknowledgment of its finality or a waiver of the right to attack it for fraud."
The contrary theory is well represented in the case of UnitedRailways, etc., v. Corbin, 109 Md. 52, 71 A. 131. We quote therefrom as follows:
"Such practice might result either in the time of this court being occupied in hearing and considering an appeal from a judgment which the lower court was at the same time considering the propriety of vacating, and might vacate, or it would require this court to postpone the hearing and decision of the appeal until the lower court determined whether it would vacate the judgment, although the question was not involved in the appeal in this court. Circumstances might delay action by the lower court for months, and in the meantime this court could not with propriety dispose of the appeal, although regularly before it, because of the proceedings taken in the court below, subsequent to the transcript being filed in this court. If such be the right of a party losing a case, resort might be had to such a motion for the purpose of delay, or to annoy and harass the other party, for if the motion must be entertained by the lower court it cannot always be speedily disposed of. . . .
"But in addition to those reasons, which may be said to only affect the convenience of the court or the parties, or at most only to cause delay, which is not as of much importance as giving relief against fraud, the practice might result in conflicting actions *Page 428 of the two courts which would not only be injurious to the parties interested, but would reflect discredit upon the administration of justice. This court might, for example, affirm a judgment the same day that the court below struck it out. The Constitution says that the judgments of this court `shall be final and conclusive,' and there are statutes in force which would cause great confusion, to say the least, if the two courts were permitted to act in reference to the same judgment at the same time. Under section 22 of article 5 [Code 1904] this court has power, whether a judgment be reversed or affirmed, to grant a new trial, if it be of the opinion it ought to be granted, and it might affirm a judgment and order a new trial, and the lower court might the same day pass an order refusing to strike out the judgment. Under section 23 of that article, if this court reverses a judgment, it can, on the statute being complied with, direct the clerk to transmit a copy of the record to the clerk of the court of some other county or city, with an order directing it to proceed with a new trial, while the lower court might strike out the judgment and order the case to be retried. Or the judgment might be affirmed in this court and execution issued thereon, while the lower court might grant the motion to strike out the judgment on which the one in this court was based. The bond could be sued if the judgment is affirmed by this court, and other instances of confusion and injury might be given.
"If it be said that it is not contended that the two courts can act concurrently, which is to have precedence? Is this court to wait until the lower court acts? If so, where is the authority for it? There is no statute authorizing such delay, and it would be a very questionable exercise of power for this court to continue a case pending here, at the instance of the appellant and against the will of the appellee, to await the action of the lower court on a motion made after the appeal was regularly docketed in this court. If, on the other hand, it be said that the lower court must wait until this court has acted, that is precisely what the order appealed from provided for." *Page 429
We might cite many cases sustaining each view above presented. We think, however, that is unnecessary, as the two quotations set forth the reasoning supporting the respective rules, and mere numbers can add nothing thereto. We are decidedly of the opinion that the logic of the last-cited case is far superior. Under the Constitution the judgments of the Supreme Court are binding and conclusive on all courts and litigants. State v. SuperiorCourt, 22 Ariz. 452, 197 P. 537. It would indeed be an anomalous and intolerable condition if, after this court took jurisdiction of a question, a lower tribunal had the right to act therein so long as this court retained jurisdiction. The situation might then arise of this court affirming a judgment and ordering the execution thereof, while at the same time the trial court set aside the judgment and rendered one diametrically opposed to that just approved by us. We therefore state the rule in this jurisdiction to be that when the Supreme Court has taken jurisdiction of a case on an appeal no inferior tribunal has any jurisdiction thereof, except to perform the necessary acts in furtherance of the appeal, such as correcting and perfecting its records to show what has actually occurred in the lower court, etc., so long as jurisdiction is retained by this court.
This being the law, the trial court correctly ruled that it was without jurisdiction to vacate or set aside the judgment which had been appealed from. The order of the superior court of Mohave county is affirmed.
ROSS, C.J., and McALISTER, J., concur. *Page 430