(dissenting).
I agree with the proposition that if the 30-day statute, section 69-249, supra, applies, then appellant is too late with his notice of appeal. However it is probable that the portion of section 69-249 relating to the 30-day period has been impliedly repealed by section 21-1801, supra, Rules of Civil Procedure, No. 72, which allows 60 days in which to appeal. On that basis I dissent.
It is to be noted that the appellant filed its notice of appeal within 60 days of November 24th, the date on which its attorney actually received notice. Actual notice is sufficient notice. It is further to be noted that the day on which the judgment was entered (November 13th), the clerk in reply to an inquiry of appellant’s attorney advised the latter that no judgment had been entered. It is a useless presumption to conclude that the letter was written before the judgment was entered. The important thing is that the appellant’s attorney was diligent. He resides in Tucson some 125 miles from the seat of the Maricopa County court. He inquired by mail, and then followed it up by a personal visit to the clerk’s office 11 days later, when he actually learned that judgment was entered against his client. His conclusion that he had 60 days in which to appeal was reasonable and sustained in the law.
The only reason that I can fathom for the purpose of the statute is that the clerk must give notice to counsel of entry of judgment so counsel will know when his time of appeal begins. It is an extreme burden to put on an attorney when he is appearing before a court in a county other than his own to continually inquire if and when a judgment has been entered. He is entitled to notice under the law, and has a right to know 60 days before his client’s rights to appeal are lost.
The majority opinion cites three Arizona cases; Gillespie Land & Irrigation Co. v. Buckeye Irr. Co., Ingalls v. Neidlinger, and Hamilton v. McDaniel, supra; and one U. S. Supreme Court case, Hill v. Hawes.
A reading of the Arizona cases will disclose that in none of those cases was the question of lack of notice of entry of judgment on the part of the litigants involved. Hence they are not in point.
The majority opinion cites the minority vieiv of Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 336, 88 L.Ed. 283, 149 A.L.R. 736. The case is authority for the following: “It is true that Rule 77(d) does not purport to attach any consequence to the failure of the clerk to give the prescribed *38notice; but we can think of no reason for requiring the notice if counsel in the cause are not entitled to rely upon the requirement that it be given. It may well be that the effect to be given to the rule is that, although the judgment is final for other purposes, it does not become final for the purpose of starting the running of the period for appeal until notice is sent in accordance with the rule. * * * But we think it was competent for the trial judge, in the view that the petitioner relied upon the provisions of Rule 77(d) with respect to notice, and in the exercise of a sound discretion, to vacate the former judgment and to enter a new judgment of which notice was sent in compliance with the rules.” (Rehearing in the Hawes case was denied in 321 U.S. 801, 64 S.Ct. 515, 88 L.Ed. 1088). See also Commercial Credit Corp. v. U. S., 8 Cir., 175 F.2d 905; U. S. v. Certain Lands, etc., D.C., 82 F.Supp. 432.
The majority opinion cites Rule 73(b), section 21-1803, which provides for the clerk to give notice when an appeal has been filed, and specifically sets out “ * * * but his (clerk) failure so to do does not affect the validity of the appeal.” It is significant that Rule 77(g), section 21-1908, the one in controversy here, does not so provide.
I think the motion to dismiss tifié appeal should be denied and the case determined on its merits.