First Bank of Ariz. v. Otis Elevator Co.
Citation | 2 Ariz.App. 596,411 P.2d 34 |
Decision Date | 11 February 1966 |
Docket Number | CA-CIV |
Parties | FIRST NATIONAL BANK OF ARIZONA, a corporation, and First Bank Building Corporation, Appellants and Cross-Appellees, v. OTIS ELEVATOR CO., Inc., Cross-Appellant, v. Una MAURER, Appellee. 129, 130. |
Court | Court of Appeals of Arizona |
Moore, Romley, Kaplan, Robbins & Green, by Philip A. Robbins, Phoenix, for appellants and cross-appellees, First Nat. Bank of Arizona and First Bank Bldg. Corp. Jennings, Strouss, Salmon & Trask, by Thomas J. Trimble, Phoenix, for appellant Otis Elevator Co., Inc.,
Leonard S. Sharman, Phoenix, for appellee, Una Maurer.
This is on motion for rehearing in the above entitled case (former opinion 2 Ariz.App. 80, 406 P.2d 430). We filed our opinion on October 11, 1965, and Otis Elevator, in its motion for rehearing, took exception to our decision, as well as our reasoning. We fell that our opinion might lead the casual reader to the belief that Otis Elevator's liability is based upon a breach of warranty on the sale of the elevator, and a breach of warranty upon the maintenance contract. the cross-complaint of the cross-plaintiff, First National Bank of Arizona, stated in part as follows:
When, on the second day of the trial, appellee Maurer moved to dismiss her action as to Otis, the trial court granted this motion after counsel for First National and Otis had stipulated that this dismissal would have no effect on the cross-claim of First National against Otis. First National's cross-claim against Otis was submitted for decision to the trial court without jury, and the court entered its judgment as follows:
'IT IS ORDERED, adjudged and decreed that defendant First National Bank of Arizona and First Bank Building Corpoation have and recover judgment over against defendant Otis Elevator, Inc., in an amount equal to the judgment of plaintiff against the defendant, First National Bank of Arizona and First Bank Building Corporation, heretofore recovered in this action; plus plaintiffs' taxable costs and defendant, First National Bank of Arizona and First Bank Building Corporation's taxable costs; including the jury fees assessed against said defendants, but denying recovery for attorneys' fees.'
First National then prosecuted its cross-claim against Otis on the theory of indemnity. As has been stated:
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