Byrd v. Peterson

• Decision Date: 12 November 1947
• Docket Number: 4921
• Citation: 186 P.2d 955,66 Ariz. 253
• Parties: BYRD et al. v. PETERSON et al
• Court: Arizona Supreme Court

186 P.2d 955

66 Ariz. 253

BYRD et al. v. PETERSON et al

No. 4921

Supreme Court of Arizona

November 12, 1947

Appeal from Superior Court, Pima County; John D. Lyons, Jr., Judge.

Judgment reversed and cause remanded with directions.

Fred W Fickett, William S. Dunipace and Robert S. Tullar, all of Tucson, for appellants.

A. E Butterfield and Gordon G. Aldrich, both of Tucson, for appellees.

Don T Udall, Superior Judge. La Prade and Udall, JJ., concur. Stanford, C. J., having disqualified himself, Honorable Don T. Udall, Judge of the Superior Court of Navajo County, was called to sit in his stead.

OPINION

Don T. Udall, Superior Judge.

The appellees, as plaintiffs in the lower court, brought an action of forcible detainer against appellants, as defendants in the lower court, to recover from them a portion of the building located at 128 North Church Street, Tucson, Arizona, consisting of three offices. The case was tried by the court without a jury.

A brief summary of the evidence discloses that on January 8, 1945, a lease was entered into between the appellees, as lessors, and A. E. Butterfield, as lessee, covering the aforesaid premises together with other property not herein concerned, for a period of one year; and thereafter on February 17, 1945, a second lease was entered into between these parties covering the same premises for a period of four years from and after January 9, 1946. Permission was granted Butterfield in both of the leases to sublet or assign the property. This he did on February 20, 1945, by subletting the three offices to the appellants under the firm name and style of Duquesne Mining Company for a period beginning March 1, 1945, and ending January 1, 1950. Among other recitals, the sublease contained the following provisions, to wit:

"* * * at the expiration or termination of this lease, or of the said two leases above described and referred to, whichever is the earlier in time, peaceable possession of said premises shall be given to the party of the first part * * *"

On or about November 9, 1945, the two leases between the appellees and Butterfield were terminated by mutual consent of the parties, but the appellants refused to terminate their sublease with Butterfield and deliver up possession of said premises.

As conclusions of law, the court found that the appellees are the owners in fee simple of said premises; that the voluntary termination of the two leases between the appellees and Butterfield, effective November 9, 1945, and the surrender thereof, was binding upon the appellants as sublessees; that a partnership may not be sued by its firm name in Arizona and it is sufficient to sue the individuals composing the partnership; that direct relationship of landlord and tenant is not essential to support an action in forcible entry and detainer; that privity of contract between the parties is unnecessary in an action of this character, the right to possession being the only issue; that the appellants were guilty of forcible detainer. Judgment was duly entered against the appellants from which they prosecute this appeal.

In view of the ruling that is to be made in this case, it is only necessary to consider three of the many assignments of error, and they are treated in the following order: (1) In a forcible detainer action, does the Clerk of the Superior Court have authority to issue a summons requiring a defendant to appear and answer in less than twenty days from the time of service of the summons and complaint? (2) Where possession to property was originally obtained in a partnership name, should the partnership be included as a party defendant along with the persons composing the partnership, who are actually possessing it, in a forcible detainer action? And (3) will the surrender of the lease by a lessee to his lessors after a sublease be permitted to operate so as to defeat the estate of the sublessee?

With respect to the first question, it will be noted in the record that appellants were served with summons and complaint pursuant to the provisions of Section 27-1205, A.C.A.1939, and the clerk granted them six days to appear and answer the complaint. Within that time, the appellants appeared and moved the court "* * * that said action be dismissed and that the summons heretofore issued herein be quashed for the reason and on the grounds that there was no authority of law for this court or the clerk thereof to issue any summons which require the defendants to appear and plead in any action in less than twenty (20) days from the service upon them of the summons and complaint."

Appellants in support of the first assignment of error referred to above have directed our attention to Rule 1, Rules Civ.Proc., being Section 21-201, A.C.A.1939, which reads as follows:

"Scope of rules. -- These rules govern the procedure in the superior courts of Arizona in all suits of a civil nature whether cognizable as cases at law or in equity. They shall be construed to secure the just, speedy, and inexpensive determination of every action." (Emphasis supplied.)

We are then referred to Rule 12(a), Section 21-428, A.C.A.1939, which provides that "A defendant shall serve his answer within twenty [20] days after the service of the summons and complaint upon him, * * *." Appellants contend that Section 21-428 supersedes the conflicting portions of the older section of 27-1205 which requires an answer in such a case in no more than six days. Our attention is directed to the case of Food Machinery Corporation v. Guignard, D.C., 26 F.Supp. 1002, wherein the court in referring to Rule 12(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c (our Section 21-428), concluded that the rule imperatively directed that twenty days be granted the defendant to plead. This case is not in point for the reason that it is not a case of forcible entry and detainer. We pointed out in Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394, which action was brought and determined after the adoption of the new rules, that the procedural provision in an action of forcible entry and detainer is to provide a speedy and adequate remedy for obtaining immediate possession of premises. We took cognizance of the existence of Sections 27-1205 and 27-1207, A.C.A.1939, and treated them as if effective. It is true that the point here raised was not called to our attention in that case. In the later case of Hinton v. Hotchkiss, 65 Ariz. 110, 174 P.2d 749, 753, we pointed out that procedural provisions of the forcible detainer statutes are an integral part of the right itself and not solely procedural and hence are not superseded by the new Rules of Civil Procedure relating to the timely presentation and prosecution of counterclaim and cross complaints. In the Hinton case the defendants attempted to prosecute a cross complaint. Their cross complaint was dismissed upon motion, and they were found guilty of forcible entry and detainer. In referring to appellants' position in the Hinton case we said:

"If appellants' position is correct, the Rules of Civil Procedure must be construed as having repealed a portion of a statutory remedy for forcible entry and detainer existing only by virtue of the statute setting up such right and remedy. The Act (Ch. 8, sec. 1, Laws 1939) authorizing the Supreme Court to promulgate rules regulating pleading practice, and procedure contained the following limitation: 'Such rules shall not abridge, enlarge or modify the substantive rights of any litigant. * * *.' Section 19-202, A.C.A.1939. If appellants' construction is tenable, then the forcible detainer statute must itself be regarded as having been amended, since the interposition of a counter-claim or cross complaint in a forcible detainer action and a trial of such a cross complaint, of the nature herein interposed, with the trial of the issues made by the forcible detainer pleadings is impossible without a change in the statutes affording the forcible detainer remedy. It would mean that the statutes establishing the remedy of forcible entry and...