Brought v. Minor

• Decision Date: 01 May 1915
• Docket Number: Civil 1427
• Citation: 148 P. 294,17 Ariz. 28
• Parties: J. R. BROUGHT, Appellant, v. PIERREPONT MINOR, Appellee
• Court: Arizona Supreme Court

148 P. 294

17 Ariz. 28

J. R. BROUGHT, Appellant, v. PIERREPONT MINOR, Appellee

Civil No. 1427

Supreme Court of Arizona

May 1, 1915

APPEAL from a judgment of the Superior Court of the County of Maricopa. John C. Phillips, Judge. Modified and affirmed.

Mr. C D. Jamison and Mr. H. W. Clark, for Appellant.

Mr Richard E. Sloan and Mr. James Westervelt, for Appellee.

OPINION

FRANKLIN, J.

This is a statutory action of forcible detainer. It is brought under chapter 5 of title 6 (paragraphs 1525-1552), Civil Code of 1913, and has for its purpose a trial of the right of actual possession to that certain real property situate in the city of Phoenix, Arizona, and described as lots 10 and 12 of said city; the same being the premises upon which the building known as the Savoy Theater stands. In the superior court the action was tried on its merits, and, the jury having found the appellant guilty of forcible detainer of the property described, a judgment of the court for the plaintiff for a restitution of the premises was given.

On the threshold of a consideration of this appeal we feel constrained to observe that appellant has not given that attention to the preparation of his appeal for presentation to this court that the law and the rules of this court require; the result being that we have experienced infinite perplexity in trying to grasp the grounds of the appeal, and ascertaining what questions we are asked to consider and upon which reliance is had for a reversal of the judgment of the superior court. The difficulties we encounter have beset the appellee also, and he frankly states in his brief an inability to make such reply as the merits of the case require, from a lack of understanding as to what precise points are at issue on the appeal. What purports to be an abstract of the record is merely a recital of the events occurring during the progress of the cause and utterly fails to incorporate such portions of the record as are necessary to inform this court of the errors relied upon. On motion of the appellant a cross-appeal by appellee in this case was dismissed for want of jurisdiction, for the reason that neither the appellant nor his attorney was given the notice of appeal required by statute. Pierrepont Minor v J. R. Brought (No. 1436), ante, p. 27, 148 P. 297, just decided.

On motion of the appellee in the instant appeal we made an order striking from the files the transcript of the reporter's notes. We were compelled to do this because the appellant failed to give the appellee any notice of the filing of the transcript of the reporter's notes, and also because such transcript of the reporter's notes was not allowed to remain on file with the clerk of the superior court for the full period of 20 days before being presented to the trial judge for a certification of its authenticity. It is perfectly obvious that, if the appellee is not given the required notice of the filing of the transcript, and the same is not allowed to remain on file with the clerk for the required time before being certified by the trial judge, the appellee is denied a most important right; that is, an opportunity to specify wherein it is defective and suggesting and setting forth such amendments as may be necessary to make it correct before presentation to the trial judge. This in order that when the transcript is certified to by the trial judge its integrity as a record speaking absolute verity may not be assailed. Unless parties prosecuting an appeal pay strict regard to the statutory requirements in this behalf, it must follow that the spirit and purpose of the law, which is to give those interested a full opportunity to make the record speak the truth, will be defeated, and a consideration of such a record by this court must therefore, by reason of such omission, be denied.

Appellee also complains of the insufficiency and uncertainty of the assignments of error. That the same are not sufficiently explicit or specific to bring them within the rules as proper assignments of error. The assignments of error are very general and indefinite, and the criticism thereof by appellee is not unfounded. But appellee has not pursued the course outlined by paragraph 1262 of the Civil Code of 1913, and we shall strive to consider them as best we may.

There are 14 assignments of error:

"First. The trial court erred in denying defendant's motion to quash the writ of summons and the return upon the same.

"Second. The trial court erred in issuing the venire for a trial jury at the time the writ of summons was issued."

These two assignments are not argued, and are passed under the well-known rule that an assignment of error not argued in the brief will be deemed waived.

"Third. The court erred in denying the defendant's motion in arrest of judgment.

"Fourth. The trial court erred in denying defendant's motion for a new trial.

"Fifth. The court erred in admitting in evidence, over the objections of the defendant, a copy of the notice to quit offered by the plaintiff.

"Sixth. The court erred in refusing defendant's evidence to show the terms of the contract in addition to the terms recited in the writing.

"Seventh. The court erred in refusing to allow the evidence offered by the defendant in the progress of the trial showing that the defendant paid the plaintiff $50 more than the amount specified in the writing.

"Eighth. The court erred in denying defendant's motion, made at the conclusion of the evidence, instructing the jury to return a verdict for the defendant, on the ground that the evidence did not show that a legal tender of $1,000, called for by the contract, had been made by the plaintiff to the defendant.

"Ninth. The court erred in its finding of facts at the conclusion of the evidence.

"Tenth. The court erred in pronouncing its judgment for the plaintiff.

"Eleventh. The court erred in pronouncing a conditional judgment, that is, a judgment based upon the right of the plaintiff to pay or not to pay into the court the amount of $1,000, which sum should have been tendered and have been made good as a tender on the 1st day of May, and subsequent...