Gold v. Killeen, Civil 3830

• Decision Date: 29 June 1937
• Docket Number: Civil 3830
• Citation: 50 Ariz. 126,69 P.2d 800
• Parties: A. M. GOLD, Appellant. v. HELEN GOLD KILLEEN and ROSA GOLD, Executrices of the Estate of MARTIN GOLD, Deceased, Appellees
• Court: Arizona Supreme Court

69 P.2d 800

50 Ariz. 126

A. M. GOLD, Appellant. v. HELEN GOLD KILLEEN and ROSA GOLD, Executrices of the Estate of MARTIN GOLD, Deceased, Appellees

Civil No. 3830

Supreme Court of Arizona

June 29, 1937

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dave W. Ling, Judge. Judgment affirmed.

Mr. B E. Marks, for Appellant.

Mr Thomas W. Nealon, for Appellees.

OPINION

LOCKWOOD, J.

A. M Gold, hereinafter called plaintiff, brought suit against Helen Gold Killeen and Rosa Gold, as executrices of the estate of Martin Gold, deceased, hereinafter called defendants, on a claim for services alleged to have been rendered by plaintiff for decedent during a term of twelve years, on an agreement with the latter that they would be paid for upon decedent's death. Martin Gold, the decedent, passed away in July, 1931, and while his estate was in the course of probate in Maricopa county, Arizona, plaintiff filed a claim with the defendants for payment in accordance with the terms of the alleged agreement. The claim was rejected, and the present action filed in April, 1936. A general demurrer to the complaint was filed and sustained, and judgment entered in favor of defendants, and from such judgment an appeal was taken to this court. We reversed the judgment in the case of Gold v. Killeen, 44 Ariz. 29, 33 P.2d 595, 94 A.L.R. 448, holding that a complaint which set up an alleged agreement to pay for services, but not disclosing whether it was oral or in writing, was not subject to a general demurrer, and that a promise of the nature pleaded, since it was to take effect at the death of the promisor, did not fall within that provision of the statute of frauds in regard to contracts which would not be performed within the year, as such death might occur within the year. There were other matters settled by the opinion which we need not refer to, as they are not involved in the present appeal.

On May 17, 1935, after the case had been remanded to the superior court for a new trial, defendants filed a second amended special demurrer and answer. The point raised by this demurrer was that the claim attached to the complaint was not a proper claim for presentation to defendants, in that it did not comply with the terms of section 3988, Revised Code of 1928, which reads as follows:

"Allowed claim to be filed by clerk; vouchers. Every claim allowed by the executor or administrator, and approved by the judge shall within thirty days thereafter, be filed in the court as an acknowledged debt of the estate, to be paid in due course of administration. If the claim is founded on an instrument in writing, a copy of such instrument must accompany the claim, and the original instrument must be exhibited if demanded; if the instrument is lost or destroyed, the claimant must accompany his claim by his affidavit, containing a copy or particular description of such instrument, and stating its loss or destruction; if the claim or any part thereof is secured by a mortgage or other lien, which has been recorded, it is sufficient to describe the mortgage or lien, and refer to the date, volume and page of its record. If the claimant has left any original instrument with the executor or administrator, or filed the same in court, he may withdraw the same when a copy thereof is attached to his claim. A description of every claim filed shall be entered by the clerk in the register, showing the name of the claimant, the amount and character of the claim, rate of interest and date of allowance."

The particular point relied on was a failure to comply with the express provisions of the section in regard to claims based upon written contracts. The same point was raised by the answer. The demurrer was duly presented to the court and by it overruled, and the case was set for trial with a jury. Meantime a reply to the second amended answer was filed, which alleged, in substance, that the defendants had waived the provisions of section 3988, supra, for certain reasons not necessary to state herein, and also denying generally the allegations of the answer. Defendants moved to strike that portion of the reply which set up a waiver, and the matter was heard by the court and the motion granted. Thereupon the jury was waived by the parties, and the case went to trial before the court, and a judgment in favor of defendants was rendered, whereupon this appeal was taken from the judgment and the motion denying a new trial.

There are five assignments of error, which read as follows:

"I. The trial court erred in granting the motion striking the pleading filed by the plaintiff on March 7, 1936, being his reply to the defendants' Second Amended Answer.

"II. The trial court erred in sustaining an objection to the admission of the claim of plaintiff which had been presented to the executrices of the estate of Martin Gold, deceased.

"III. The trial court erred in refusing to admit plaintiff to make proof of the allegations of the complaint.

"IV. The trial court erred in rendering judgment for the defendants and against the plaintiff, and decreeing that the complaint be dismissed with prejudice.

"V. The trial court erred in denying the motion of plaintiff for a new trial, which motion was based on the foregoing assigned errors."

Defendants object thereto on the ground that they do not comply with rule 12 of this court, and, therefore, raise no questions for our consideration. It is clear that assignments IV and V do not comply with the rule, but are general in their nature and, therefore, cannot be considered. Miller v. Kearnes, 45 Ariz. 548, 46 P.2d 638; Thornburg v. Frye, 44 Ariz. 282, 36 P.2d 548.

It is doubtful whether assignments II and III are sufficient; but we will assume, for the purposes of this case, that if the record sustains them, we may review the questions attempted to be raised thereby. We will, therefore, consider assignments I, II, and III in their order.

The first is that the court erred in granting the motion striking certain parts of plaintiff's reply to the second amended answer. It is urged in support of this assignment that on the previous appeal we held that the complaint stated a cause of action and that, such being the case, defendants may not again raise on this appeal points which were, or which could have been, decided on the first appeal. We think the general rule is correctly stated, but we do not see its application to the situation as shown by the record in the present case. Our holding on the previous appeal was that the complaint was sufficient as against a general demurrer. The trial court when the case was remanded and defendants filed their special demurrer, properly overruled it, presumably under the rule above set forth. The question, however, as to the sufficiency of the claim, under section 3988, supra, was not, and could not be, determined on the first appeal. If the contract were an oral one, it was, of course, unnecessary to comply with the provisions of section 3988, supra, in regard to written contracts. If it were a written one, such compliance would presumably be necessary. The court would, therefore, doubtless have overruled the second special demurrer, even had we not previously determined that the complaint was good as against a demurrer on the ground that the complaint did not show whether the contract declared on was oral or written. This, however, did not prevent defendants from raising the same question by an answer which was, indeed, the only way in which it could properly be raised, since the complaint did not show...