Genardini v. Kline

• Decision Date: 18 June 1920
• Docket Number: Civil 1718
• Parties: D. J. GERNARDINI, S. L. BUTLER, P. MARGOSIN and FRANCISCO GALLEGO, Appellant, v. MOSE KLINE, Appellee
• Court: Arizona Supreme Court

190 P. 568

21 Ariz. 523

D. J. GERNARDINI, S. L. BUTLER, P. MARGOSIN and FRANCISCO GALLEGO, Appellant, v. MOSE KLINE, Appellee

Civil No. 1718

Supreme Court of Arizona

June 18, 1920

APPEAL from a judgement of the Superior Court of the County of Chochise. Alfred C. Lockwood, Judge. Affirmed.

Mr John F. Ross, Mr. Bruce Stephenson and Messrs. Doan & Doan for Appellants.

Messrs Boyle & Pickett, for Appellee.

OPINION

ROSS, J.

The present case is ancillary to and grows out of another case hereinafter mentioned, and is over the rental value of lots 21 and 22, block 82, of the city of Douglas, and the buildings thereon. It arises in this manner: In the superior court of Cochise county the plaintiff (appellee) and defendants (appellant), as such, contested the right to the possession of said premises. On February 2, 1917, judgment awarding the possession to appellee, Kline, was entered, and as a part of said judgment, and based upon the jury's answer to an interrogatory, the rental value of said premises form July 1, 1916 to January 25, 1917, was fixed at $200 per month for the purpose of fixing appellee's damages for witholding possession from him. Thereafter appellants appealed the case to the Supreme Court, where the judgment of the superior court was affirmed with slight and unimportant changes. 19 Ariz. 558, 173 P. 882. Upon the return of the mandate to the lower court, August 17, 1918, counsel for both parties being present, appellee moved "for judgment against appellant in accordance with the mandate of the Supreme Court duly issued, and did in open court give notice of motion value of said premises as provided by paragraph 1646, Revised Statutes of Arizona of 1913, to be made on the twenty-fourth day of August, 1918." Appellants at the time waived the statutory ten days' written notice thereof. The hearing on the motion was continued from August 24 to August 31, 1918. On the last-named date, all parties being represented, appellee presented to the court a form of judgment for the court's signature. This judgment, it appears, was in conformity with the mandate and, in addition, awarded appellee as damages, pending the appeal, $1,110, based upon a rental value of premises at $200 per month. The minute entry made by the clerk fo the court shows this as what took place:

"Counsel for defendants [appellants] objects to the form of judgment presented on the ground that the same does not conform to the mandate of the Supreme Court of the state of Arizona. Court heard counsel in the premises, granted the motion and overruled the objections of the defendants [appellants], and signed and entered judgment for plaintiff [appellee] as presented."

The statute under which the motion for judgment for rental value of premises, pending the appeal, was made, reads as follows:

"The plaintiff may have judgment for the rent of rental value of the premises which accures after judgment and before delivery of possession, by motion in the court in which the judgment was rendered, ten days' notice thereof in writing being given, unless judgment is stayed by appeal and bond given to suspend the judgment, in which case the motion may be made after the affirmance thereof." Paragraph 1646, Civ. Code 1913.

It is proper, we think, to state that no motion was made for a new trial, and so far as shown by the record, the trial court's attention was not called to the second and third errors now urged for the first time as grounds for reversing the judgment. The trial court therefore was given no opportunity to examine these two questions here for review.

Appellants assign three errors, as follow: (1) "The court erred in entering judgment as entered for that said judgment entered did not conform to the mandate of the Supreme Court; (2) the court erred in rendering judgment against the appellant D.J. Genardini for $1,110 on the said motion for rent or rental value of said premises for the period pending the appeal, without taking evidence to support the same"; and (3) it is claimed that, inasmuch as no evidence was submitted in support of motion, appellants' property was taken without due process of law, in violation of section 48 article 2, of the Constitution of Arizona, and the fourteenth amendment to the Constitution of the United States.

From the above statement of facts (which are stipulated by counsel), we think it unnecessary to give much attention to the first point. If the Court had jurisdiction of the parties and the subject matter of the motion, and at the time the formal written judgment on the mandate was presented to him he was shown that appellee should recover the rent that had accrued pending the appeal, we cannot see how appellants could be prejudiced by including in that judgment also the item of rent. Its inclusion in the judgment did not disregard nor violate in the slightest the mandate of the Supreme Court, and whether the course adopted, or the more formal course of a separate and independent motion for judgment for rent, was followed, was of little moment so far as the merits of the question to be decided was concerned.

The second error assigned is of a more serious nature. It is the contention of appellants that it was the duty of the court, upon the hearing of motion for judgment for rent or rental value of premises that had accrued pending the appeal, to take and hear evidence for the purpose of ascertaining such rental value, and that, the conceded fact being that no evidence was adduced, the judgment for rent was erroneous. was adduced, the judgment for rent was erroneous. They say:

"This statute (paragraph 1646) is silent on the question as to how the court will determine the amount of rentals due for the premises during such period of time, but, in the very nature of things, such a motion does raise an issue of fact as to what the rental value of said premises is for such period that must be determined by the court."

On the contrary, it would seem that the issue of fact as to the rental value had already been settled in the trial of the right of possession, and that the provision of paragraph 1646 were intended to give the successful litigant an easy, quick and inexpensive remedy to recover the rent of premises pending the appeal. Paragraph 1646 does not stand alone. It is only part of the statute law concerning "actions for the recovery of real property." Paragraph 1627-1647, Civ. Code. Its meaning and purpose can be seen only by considering it in connection with all the text on the subject matter. Under paragraph 1631, damages, including rents, may be asked for in the complaint. Paragraph 1641 mentions use and occupation of the premises as items that may be recovered. Paragraph 1643 limits the amount of rent that may be collected from the tenant therein named "to the rent in arrears at the time of suit brought. . . and that which may afterwards accrue during the continuance of his possession."

The law contemplates,...