Bloch v. Bentfield
| Decision Date | 30 June 1965 |
| Docket Number | CA-CIV69,1CA-CIV70 |
| Citation | 1 Ariz.App. 412,403 P.2d 559 |
| Parties | Bernard BLOCH, Nathan Bloch and Ruth Bloch, his wife, Appellants, v. Elmer A. BENTFIELD and Shirley Bentfield, his wife, Joseph Madden and Dolores Madden, his wife, Appellees. Bernard BLOCH, Nathan Bloch and Ruth Bloch, his wife, Appellants, v. Frank MAUS and Dorothy Maus, his wife, Appellees, v. Joseph M. MADDEN and Dolores M. Madden, his wife, Appellees. * 1 |
| Court | Arizona Court of Appeals |
Riggs, Brown & Keil, by Fordyce W. Riggs and Martin F. Keil, Phoenix, for appellees.
Mr. Church who represented the appellants at the oral argument was not an attorney of record in the Superior Court and he advised this Court that he had been retained in connection with these appeals less than a week before the scheduled argument.
A single opinion is being written in relation to the two appeals which are pending before this Court because many of the legal problems are the same.
In both cases the plaintiff named in the complaint in the trial court were the same persons who appear as the named appellants in the foregoing caption of this opinion. Bernard Bloch, one of the plaintiffs, was present in the court room at the time of the oral argument before this Court and in response to questions by the Court admitted that as of the date of the oral argument he was not and that he had never been licensed to practice law in Arizona.
Briefly, the record discloses the following background. The Bentfields purchased land from the Blochs. Bernard Bloch was permitted to store his personal property in a room on the land for a limited period of time without rent and was permitted to continue a small cafe on the land for a limited period of time. By the time the actions, which are the subject of this opinion, were filed in the trial court, these permissive periods had expired. Prior to the filing of the actions, the Maddens had purchased the real property from the Bentfields.
On December 14, 1959 Civil Cause No. 112,171 was filed in the Superior Court for Maricopa County. The relief sought was the replevin of certain items of personal property. The named plaintiffs were the three persons who are above listed as the appellants. The complaint was signed only by Bernard Bloch in Propria Persona. The complaint alleged that the plaintiffs owned the personal property in question. The affidavit on replevin was executed by Bernard Bloch wherein he stated under oath that he was the owner of the personal property in question. The clerk of the court issued an 'Order for Taking Property'. Attached to the original of this document is the sheriff's return certifying that he took the property in question into his possession, that he stored the same, that no redelivery bond was posted and that he surrendered the property to the 'plaintiff' who we assume to be Bernard Bloch. So far as the record discloses, Bernard Bloch still retains the property.
The complaint named Mr. and Mrs. Maus as the defendants. They appeared in the action alleging that they were merely the agent of Mr. and Mrs. Madden and secured an order for a third-party complaint. The third-party complaint was filed naming Mr. and Mrs. Madden as the third-party defendants and therein Mr. and Mrs. Maus prayed for recovery over against Mr. and Mrs. Madden in relation to any judgment which the plaintiffs might secure against the third-party plaintiffs. The Maddens filed an answer to the third-party complaint and also filed a counter-claim against the plaintiffs urging that they, the Maddens were residents of Minnesota; that Nathan Bloch and Ruth Bloch were residents of Michigan; that Bernard Bloch was present in Arizona; that they, the Maddens, owned certain described real property; that Bernard Bloch had an oral agreement allowing him to store certain personal property on the real property for six months without payment of rent; that the six months had expired; that the property had not been removed; that rent was due from and after the expiration of the six months, and the Maddens prayed for a landlords lien as well as for damages in relation to the loss of use of the premises wherein the goods were stored as well as other matters. Even though the counter-claim was addressed only Bernard Bloch moved to dismiss the counter-claim and in this motion represented only himself. This motion was later denied. Three answers to the counterclaim were filed, one by Bernard Bloch for himself and two by Bernard Bloch for all of the plaintiffs, these pleadings then carrying a Michigan address for Bernard Bloch.
to the acts of Bernard Bloch, the prayer thereof seeks judgment against all of the named plaintiffs as counter-defendants. Service of the counter-claim was accomplished by mailing a copy thereof to Bernard Bloch at the Phoenix address which appears on the complaint.
On January 4, 1960 Civil Cause No. 112,550 was filed in the Superior Court for Maricopa County this cause likewise bearing the names of the three alleged plaintiffs. The defendants in the action were Mr. and Mrs. Bentfield and Mr. and Mrs. Madden. This complaint alleged certain rights in the plaintiffs based upon a pleaded written agreement for the purchase of real property. The agreement was pleaded in its entirety in the complaint and an examination thereof discloses that the sellers were Nathan Bloch and Ruth Bloch, his wife and the buyers were Mr. and Mrs. Bentfield. Again the complaint was signed by Bernard Bloch in Propria Persona.
The Bentfields filed an answer in Propria Persona and also an answer signed by a lawyer from Fargo, North Dakota. Everyone appears to have then forgotten that the Bentfields had appeared in the action.
The Maddens filed this answer alleging the acquisition of the ownership of the property in question from the Bentfields attaching a copy of a claimed deed. The Maddens further presented their counter-claim against all of the plaintiffs in relation to loss of the full use of the property by reason of the storage of personal property of Bernard Bloch beyond the period agreed; failure to remove a small cafe building and general damages by reason of action which prevented the proper development of the property. Notwithstanding the fact that the prayer for relief was for punitive damages, the language of the counter-claim controls and that language was adequate in relation to asserting a claim for compensatory damages. The counter-claim was served on the three plaintiffs by mailing a copy thereof to Bernard Bloch.
Bernard Bloch moved to dismiss the counter-claim, again representing only himself. This motion was denied and he answered the counter-claim only for himself.
We now approach the area of similarity of problems.
The motion to dismiss the damage action appears on the Court's Minutes of February 19, 1960 at which time it was assigned to Judge Jones for special argument for February 26, 1960. The minutes for February 26th reflect that on that date Mr. Riggs appeared for the Maddens and we find similar minute entries in both cases reflecting an order of the court which continued the hearing to March 11th directing that Mr. Riggs contact Bernard Bloch by letter in relation to the continuance. The minutes of March 11th reflect that Mr. Riggs had complied with the Court's request and further reflect that Judge Jones had received a telephone call from Detroit from Bernard Bloch stating Bernard Bloch's inability to attend the argument and submitting the motion on a memorandum filed. The motion to dismiss was denied in each case.
Thereafter Bernard Bloch, representing himself only, purported to give notice of appeal. He filed a single paper entitled 'Notice of Appeal'. This bore the case numbers of both cases and a caption which did not accurately correspond with the caption of either case. He forwarded a $250.00 cash bond on appeal. The notice of appeal and the clerk's receipt for the cash bond appear in the record of Cause No. 112,550.
The orders of March 11th denying motions to dismiss the counter-claim are not appealable orders under Section 12-2101 A.R.S. Even had the orders been appealable the notice and bond could not have applied to both cases.
The Maddens then sought a Superior Court recognition of the invalidity of the purported appeals and Bernard Bloch wired Judge Jones urging his lack of jurisdiction. Judge Jones properly recognized that the purported appeals were not valid and thereafter directed the refund of the so called cash bond on appeal.
The record transmitted to us does not contain a motion to set. In the record is Bernard Bloch's affidavit wherein he states under oath that both cases were set for February 15, 1962 to a jury and this affidavit not being controverted, we accept the statement as true even in the absence of a minute entry so disclosing.
We are now approaching the crux of these appeals. Part of the facts are disclosed by minute entries and part by opposing affidavits. Bernard Bloch's affidavit states he was ready for trial on February 15th but that the trial court was unable to reach the case for trial and 'that after this date this cause rode the calendar and on March 26th, 1962, a post card was mailed from the Court Administrator's Office to a mailing address of this affiant, post marked the 27th day of March, 1962, wherein it appeared that the Court ordered this cause set for call in Div. 7 for the 28th day of March, 1962, with the understanding that no jury would be called and that if the plaintiff appeared in person there would be an order reassigning the case for trial; that on March 28, 1962, the case was called for trial in Div. 1 and the plaintiff was not present in person or by counsel; thereafter the case was set for trial and heard on March 29, 1962, without giving these plaintiffs any further notice * * *'.
His affidavit further states 'From February 15, 1962, when this case was...
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...A.R.S. § 14--627, 9 lends support to this conclusion. We do not read Hewins v. Weiler, supra, to the contrary. Bloch v. Bentfield, 1 Ariz.App. 412, 403 P.2d 559 (1965), also cited by appellees, was an In personam action, as was Coulas v. Smith, 96 Ariz. 325, 395 P.2d 527 (1964). The distinc......
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