Brewer v. Morgan

• Decision Date: 30 January 1928
• Docket Number: Civil 2513
• Citation: 33 Ariz. 225,263 P. 630
• Parties: J. N. BREWER, Appellant, v. J. T. MORGAN, Appellee
• Court: Arizona Supreme Court

263 P. 630

33 Ariz. 225

J. N. BREWER, Appellant, v. J. T. MORGAN, Appellee

Civil No. 2513

Supreme Court of Arizona

January 30, 1928

APPEAL from a judgment of the Superior Court of the County of Mohave. Richard Lamson, Judge. Affirmed.

Mr. C W. Herndon and Messrs. Clark & Clark, for Appellant.

Mr Louis L. Wallace, for Appellee.

OPINION

ROSS, C. J.

It appears that the parties hereto entered into an automobile and garage partnership business on December 10th, 1916, at Kingman, Arizona, under the name of the J.N. Brewer Company the agreement being that they should both give their personal attention thereto and be equal partners. This agreement was verbal originally, but on December 19th, 1918, was reduced to writing. On or about March 23d, 1919, plaintiff, Morgan, received the appointment of clerk of the superior court of Mohave county and from then on ceased to give his personal attention to the partnership business. On May 1st, 1920, defendant, Brewer, disposed of all the partnership property to the Mohave garage, of Kingman, a partnership composed of himself and one J. C. Maddux.

On September 23d, 1921, Morgan brought this suit for a dissolution of the partnership and an accounting. The defense was that plaintiff withdrew from the partnership upon becoming clerk of the court and turned over to defendant his interest in the business and was no longer interested therein, and that defendant thereafter operated it alone and paid all bills in connection therewith and until he disposed of it to the Mohave garage.

The local judge being disqualified to try the case, Honorable RICHARD LAMSON, Judge of the superior court of Yavapai county, heard it in his place. The evidence, consisting principally of the books of the partnership and the testimony of plaintiff and defendant, was presented, and the court, feeling that the books should be audited, appointed one Carl L. Smith as such auditor and referee, with power to make and state an account of all the dealings and transactions between plaintiff and defendant as partners.

On January 28th, 1925, and after receiving the auditor's report, the presiding judge mailed from his chambers in Prescott to the clerk of the superior court of Mohave county, at Kingman, a paper headed and worded as follows:

"ORDER FOR JUDGMENT.

"It is hereby ordered that upon presentation of a formal written judgment by the plaintiff, and its approval and signing by the court, judgment will be rendered in favor of the plaintiff and against the defendant for the sum of $154.06 and costs herein.

"[Signed] RICHARD LAMSON,

"Presiding Judge."

This paper was received and filed by the clerk on January 30th, 1925. Thereafter, on August 7th, 1925, the judge made findings of fact and conclusions of law and rendered judgment in accordance therewith in favor of plaintiff and against the defendant for $4,054.72, with interest at six per cent from May 1st, 1920, costs of $21.80 and auditor's fee of $200, and by the judgment impressed a specific lien upon all of the partnership property of the J.N. Brewer Company that went into the Mohave garage.

The defendant, who has appealed from the judgment and the order overruling his motion for a new trial, contends that the judgment of August 7th, 1925, was made and entered without jurisdiction. The contention is based upon the statute providing the manner of making up and entering judgments when the judge, after the trial of a cause in a county other than his own, takes it under advisement. The statute is paragraph 346, Civil Code of 1913, and reads as follows:

"Whenever the judge of a superior court shall have heard a civil suit or proceeding in another county, and shall have taken the same under advisement, he may thereafter reduce his decision to writing and sign and transmit the same by mail to the clerk of the court wherein the suit or proceeding is pending; upon receipt of such decision such clerk shall forthwith notify the parties or their attorneys in writing of that fact, which notice shall state the title of the cause and the number thereof, and that the decision of the judge who tried the same has been filed in his office. Upon the expiration of ten days from the date of giving such notice judgment shall be entered in accordance with such decision; such judgment may be signed by either the judge who issued the decision, or by the judge of the county in which the action or proceeding is pending. The period within which a motion for new trial may be made shall not commence until the giving of the notice provided in this section."

The Constitution (art. VI, §7) and the statute (par. 345 Civ. Code) provide that a judge may hold court in a county other than his own upon request of the regular judge or the Governor; and when he does it is evident that his power and jurisdiction to try and determine cases is the same as the regular judge. In the absence of paragraph 346, supra, any order, ruling, or...