Brown v. Greer

• Decision Date: 01 July 1914
• Docket Number: Civil 1336
• Citation: 16 Ariz. 222,141 P. 843
• Parties: BENJAMIN BROWN, Appellant, v. O. P. GREER, as Administrator of the Estate of JAMES C. GREER, Deceased, and STANCIL GREER, as Surviving Partner of GREER BROS. & BROWN, a Copartnership Composed of STANCIL GREER, JAMES C. GREER and BENJAMIN BROWN, Appellees
• Court: Arizona Supreme Court

141 P. 843

16 Ariz. 222

BENJAMIN BROWN, Appellant, v. O. P. GREER, as Administrator of the Estate of JAMES C. GREER, Deceased, and STANCIL GREER, as Surviving Partner of GREER BROS. & BROWN, a CopartnershipComposed of STANCIL GREER, JAMES C. GREER and BENJAMIN BROWN, Appellees

Civil No. 1336

Supreme Court of Arizona

July 1, 1914

APPEAL from a judgment of the Superior Court of the County of Navajo.Sidney Sapp, Judge.Reversed and remanded.

The facts are stated in the opinion.

Mr Thorwald Larson and Mr. J. E. Crosby, for Appellant.

Mr. E S. Clark, Mr. J. Ralph Tascher and Mr. Neil C. Clark, for Appellees.

OPINION

SMITH, J.

This cause originated in the superior court of Apache county and was removed to the superior court of Navajo county upon change of venue.

This is an action ex contractu.The cause was tried upon the amended complaint of plaintiffs and appellees, answer of defendant and appellant to plaintiffs' amended complaint defendant and appellant's cross-complaint, and answer of plaintiffs and appellees to defendant, and appellant's cross-complaint.From a judgment in favor of plaintiffs, in the sum of $212.85, defendant appeals.

The assignments of error regarded as essential to this decision will be considered in their order.

Defendant and appellant's first and second assignments of error may be considered together.They are as follows: (1)The court erred in overruling the defendant's objection to the jurisdiction of the court, and upon the ground that there had been no compliance with the requirements of paragraph 1377, Revised Statutes of Arizona of 1901, as to the payment of costs of change of venue, and requiring the filing of a bond by the party moving for a change of venue.(2)The court erred in overruling the defendant's objection to the jurisdiction upon the ground that the files in this cause were not legally on file in this court, and that said cause was not legally docketed in said court, by reason of the nonpayment of the filing fees required by law and by the rules of said court.

The record in this cause discloses that defendant and appellant filed a motion for change of venue in the superior court of Apache county, supported by the required affidavit.Thereafter, counsel for plaintiffs and appellees appeared and consented to change of venue.Thereupon, the court made an order transferring the cause to the superior court of Navajo county.When this order was made, defendant and appellant was not represented in person or by counsel.Defendant and appellant never filed any bond upon change of venue, as provided by statute; but the clerk of the superior court in Apache county, without having received such bond, forwarded the files and papers in the cause to the clerk of the superior court in Navajo county.The clerk of the superior court in Navajo county, without receiving any fees, filed the papers in said cause in his office.

The material part of paragraph 1377, Revised Statutes of Arizona of 1901, as amended byActNo. 74, Session Laws of 1907, is as follows:

"And the clerk of the proper court shall receive the papers and docket the cause in its order, and it shall be tried or otherwise disposed of as if it had originated in that court: provided, however, that the change of venue shall be deemed abandoned, unless the applicant shall also within said five days, give an undertaking to the opposite party, with sureties to be approved by the clerk of the court, to the effect that he will pay all costs that may be adjudged against him in said case."

Paragraph 1380, Revised Statutes of Arizona of 1901, provides in part as follows:

"Each party shall be heard to urge his objections to any county or judge in the first instance, and the change of venue shall be to the most convenient county to which the objections of parties do not apply or are least applicable."

It is to be noted that, in urging his objections to the jurisdiction of the superior court of Navajo county, defendant and appellant is endeavoring to take advantage of his own default.

Under a statute somewhat similar, the supreme court of Illinois, in Lowry v. Coster,91 Ill. 182, held that, where a defendant obtains an order for a change of venue to another court under a statutory provision requiring him to pay the clerk the expenses attending the change within a specified time and he fails to pay such charges, the defendant cannot take advantage of his neglect to pay to defeat the change and have the cause remanded.

Aside from this point, however, the record discloses that when the case was called for trial January 11, 1913, counsel for defendant appeared in open court and demanded a jury and made no objection to the jurisdiction of the court until after the demand for jury had been denied.Even then, counsel for defendant made no formal motion or objection.It is elementary that, upon change of venue, counsel must make his objection to the jurisdiction in the proper manner and at the earliest opportunity.This cause was docketed in the superior court of Navajo countyOctober 3, 1912.No motion to remand was ever made or filed or presented at any time.No plea to the jurisdiction of the court was ever filed or presented at any time.In appearing in the superior court of Navajo county and making his demand for a jury trial, counsel could not thereafter be heard to urge objections to the jurisdiction, particularly objections based upon his own neglect.Christ v. Flannagan,23 Colo. 140, 46 P. 683;State v. District Court of Pine County,88 Minn. 95, 92 N.W. 518.

Our statutes are silent as to what fees, if any, shall be paid to the clerk of the court to which an action may be transferred upon change of venue.In the absence of any statutory provision or any rule of court regarding the payment of fees in such a situation, no jurisdictional question was involved in the failure of the parties to make payment of fees.

The third assignment of error is as follows: (3)The court erred in notifying counsel for defendant by letter that cases 347 and 348 had been set for hearing on the 11th day of January, 1913, when he intended to set those cases for trial on that day.

The record discloses that on December 28, 1912, Judge SAPP wrote counsel for defendant and appellant as follows:

"This is to advise that cases 347 and 348, Greer v. Brown, have been set for hearing January 11, 1913."

While a more definite notice of the setting of these cases for trial might have been given, the notice so given was certainly sufficient to place counsel for defendant and appellant upon inquiry.In the absence of any showing whatever to the trial court of unpreparedness to go to trial on January 11, 1913, the court did not commit error in ordering the cause to proceed for trial by reason of the alleged insufficient notice.

The last four assignments of error will be considered together.They are as follows: (4)The court erred in refusing to hear and decide the general demurrer to plaintiffs' amended complaint and the motion to strike out plaintiffs' answer to defendant's cross-complaint.(5)The court erred in compelling the defendant to go to trial in said action, when there were pending and undecided by either the superior court of Apache county or the superior court of Navajo countythe defendant's motion to strike the plaintiffs' answer to the defendant's cross-complaint and the defendant's general demurrer to the plaintiffs' answer to the defendant's cross-complaint.(6)The court erred in forcing the defendant to proceed to trial in this action without due and legal notice and without an opportunity to procure the attendance of witnesses essential to his proper defense.(7)The court erred in refusing defendant's demand for a trial by jury in this action, which demand was made at the earliest opportunity after the defendant was required to proceed to try said action, and as soon as defendant was advised that a time had been...