Camelback Partners v. Weber

• Decision Date: 30 April 1969
• Docket Number: No. 1,CA-CIV,1
• Citation: Camelback Partners v. Weber, 453 P.2d 548, 9 Ariz.App. 452 (Ariz. App. 1969)
• Parties: CAMELBACK PARTNERS, a limited co-partnership, Appellant, v. Joe WEBER et al., Appellees. 442.
• Court: Arizona Court of Appeals

Page 548

453 P.2d 548

9 Ariz.App. 452

CAMELBACK PARTNERS, a limited co-partnership, Appellant, v. Joe WEBER et al., Appellees.

No. 1 CA-CIV 442.

Court of Appeals of Arizona.

April 30, 1969.

Rehearing Denied May 27, 1969.

Review Denied June 24, 1969.

Herbert Mallamo and W. Francis Wilson, Phoenix, for appellant.

Forquer, Wolfe & Rosen, by Sidney B. Wolfe, Phoenix, and Allen L. Feinstein, Phoenix, for appellees.

CAMERON, Judge.

This is an appeal by the defendant from a judgment in a mortgage foreclosure action.

The action was hard-fought and most of the facts were contested in the trial court. The defendant raises some eight questions for consideration on appeal. We feel it necessary to consider only one question: Did the trial court abuse its discretion in denying defendant's motion for a continuance on the morning of the trial?

Prior to 15 December 1958, a limited partnership, Camelback Partners, was formed consisting of Ray Murphy as a limited partner and Arizona Hotels Corporation as the general partner. W. Francis Wilson was President of the Arizona Hotels Corporation and owned all of the stock of said corporation.

A realty mortgage was given by Camelback Partners to Joe Weber and Harold Weber and their wives, said mortgage on real property located in Maricopa County was to secure a note in the amount of $166,250. The Webers brought suit in April 1963 to foreclose said mortgage. The defendant, represented by W. Francis Wilson, answered alleging that the interest of the plaintiff, Joe Weber, had merged in the fee, alleged that Joe Weber was not a party-plaintiff, denied the amounts owed, and for a counterclaim asserted the merger, interest in other property other than the subject property, claimed that Joe Weber was indebted to W. Francis Wilson in the sum of $50,000 in connection with an enterprise known as the Harquahala Enterprise, and asked for accounting between the parties covering an operation called the Dwyer Ranch. The defendant also asked for other relief.

Both sides filed affidavits of bias and prejudice as to resident Superior Court judges in the County of Maricopa. W. Francis Wilson withdrew as counsel and Mr. Marvin Johnson and Mr. Herbert Mallamo were substituted as attorneys of record. During this time several motions for continuance were made on behalf of the defendant which motions were opposed by the attorneys for the plaintiffs.

The matter was set for trial before a visiting judge in January 1965 and at that time Marvin Johnson, who was to try the case, was ill and could not attend. Herbert Mallamo asked for a continuance which was opposed by attorneys for the plaintiff. This motion was granted, the court stating:

'Let the record show that in this case, the record shows that there was a motion to withdraw a file by Mr. Wilson on November 27, and there was an order entered associating Mr. Johnson and Mr. Mallamo on November 27th. Then on December 7th, there was a motion for continuance filed by Mr. Johnson and Mr. Mallamo. It was granted at that time and the Court doesn't feel that there is anything in the file which would make this cause unique and that it needs the personal attention of Mr. Johnson, but because he is ill, the Court on its own motion will continue the matter for two weeks. The 10th day of February, is that satisfactory with all of you?

'MR. WILSON: That is satisfactory.'

On 10 February 1965 the case was called to trial and Mr. Mallamo again asked for continuance pointing out that W. Francis Wilson, who was the President of Arizona Hotels Corporation, was involved in trial in another Division of the Maricopa County Superior Court which case had been in progress since Monday of that week. W. Francis Wilson was represented by Marvin Johnson in that matter and the briefs indicate that it was a divorce action in which W. Francis Wilson was a party and that it was also strongly contested. The motion for continuance was opposed and Mr. Mallamo stated:

'* * * It is my opinion that the Defendant, ...