a review of the case law interpretation of A.R.S. § 12-1127 reveals that it was incumbent upon the trial judge to release the funds upon compliance with the statute by the appellees.
In Fisher v. District Court, 4 Ariz. 254, 36 P. 176 (1894), the territorial appellate court construed Section 18 of the Eminent Domain Act which was substantially identical to A.R.S. § 12-1127, subsec. a and 12-1127, subsec. B.
In that case, the court stated that it was "mandatory upon the court to order the payment of the money" to the condemnee when application was made therefor and it was error for the trial court to order the money held pending an appeal by the State.
The Fisher case was later approved by our State Supreme Court in State ex rel. Morrison v. Jay Six Cattle Company, 85 Ariz. 220, 335 P.2d 799 (1959).
In State ex rel. Herman v. Jacobs, 7 Ariz. App. 396, 403, 440 P.2d 32, 39 (1968), the Court squarely addressed the issue of whether a trial court may refuse a condemnee's demand for funds held by the court if the State is appealing.
The State contended that the condemnees "should not have been permitted to have their judgment satisfied if the State proceeded with a motion for new trial or an appeal which could result in a reversal of the judgment." Jacobs, 7 Ariz. App. at 402, 440 P.2d at 38.
Thus, the trial court properly disbursed the funds upon the condemnee's application because it was "mandatory" that the trial court do so. See id. at 403, 440 P.2d at 39.
Although the cases above are clear in determining that A.R.S. § 12-1127 requires payment to a defendant even in the face of an appeal by the State, those cases have been equally clear in not resolving issues presented by conflicting court rules.
As the Court stated in Jacobs:
We have not been called upon to give consideration to whether the State could have invoked Rule 62(b) of the Rules of Civil Procedure, 16 A.R.S. relating to temporary stays pending a motion for new trial or to the applicability of Rule 73(k) relating to supersedeas bonds. Id.