Hammond v. A. J. Bayless Markets, Inc.

Decision Date06 October 1941
Docket NumberCivil 4231
Citation58 Ariz. 58,117 P.2d 490
PartiesC. F. HAMMOND, Appellant, v. A. J. BAYLESS MARKETS, INC., a Corporation, Appellee
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment affirmed.

Messrs Snell & Strouss and Mr. Mark Wilmer, for Appellant.

Messrs Moore & Romley, for Appellee.

OPINION

LOCKWOOD, C.J.

A. J Bayless Markets, Inc., a corporation, called the company, brought suit against C. F. Hammond to recover attorney's fees incurred by it in defending a certain action in a previous suit in which the position of the parties as plaintiff and defendant was reversed. Reference to this previous suit will be made from time to time as is necessary.

The facts leading up to the present action are not in dispute, and may be stated as follows: In 1937 both the company and Hammond were engaged in the grocery business in Phoenix. In the spring of that year the legislature had enacted chapter 44 of the Session Laws of 1937, commonly known as the Unfair Sales Act, and to which we shall hereinafter refer to as the act. Considerable uncertainty existed among the merchants in Phoenix as to the interpretation of this act and what might be and what might not be termed unfair thereunder, and also as to whether the act was in whole or in part unconstitutional. The company had been for a number of years engaged in certain practices which many of the other grocers thought affected their business seriously and which they considered to be unfair competition under the terms of the new act. It was obviously in the interests of all merchants that the true meaning and constitutionality of the act be determined. Finally Hammond brought a suit which he alleged to be on behalf of himself and others similarly situated, in which he asked that the company be enjoined from doing certain things which he contended were prohibited by the act, and that a declaratory judgment be rendered declaring the act to be constitutional. On his complaint a temporary restraining order was issued without notice, restraining the company from doing various things set forth in the order pending a hearing on an order to show cause why the injunction should not issue, and, as required by law, Hammond gave a bond with the usual conditions to support the restraining order. The company employed counsel who successfully moved to have the temporary restraining order modified in a certain manner.

The question later came on for hearing, as provided by statute, and the court granted an interlocutory injunction in terms substantially like the modified restraining order, and Hammond gave another bond as required by statute to sustain it. The company's counsel then prepared to meet the issues raised by the whole proceeding and the matter was presented to the court on its merits and it held the act to be constitutional, but found that defendant had not violated it and dissolved the interlocutory injunction. Thereafter the company brought suit upon the two bonds above referred to to recover the attorney's fees which it claimed it had been forced to expend in defense of the proceedings. It asked for $600 for its expenses anent the temporary restraining order, and for $900 for its expenses in defeating the interlocutory injunction.

The case was presented to the court sitting with a jury, and at a certain stage in the proceedings both parties moved for an instructed verdict. The court, following the rule in Fagerberg v. Phoenix Flour Mills Co., 50 Ariz. 227, 71 P.2d 1022, and Garrett v. Reid-Cashion L. & C. Co., 34 Ariz. 482, 272 P. 918, took this as a request that the issues be withdrawn from further consideration by the jury, discharged the latter, and rendered judgment for the company for $100 on the first cause of action and for $900, subsequently modified to $636, on the second cause of action. The case is before us on the appeal and a cross-appeal, Hammond claiming that the company is not entitled to recover anything, and the company insisting it should have been allowed the full amount prayed for.

There are many assignments of error grouped under a number of propositions of law, which we shall consider in the manner which seems most logical. The first is whether the suit brought by Hammond was one whose main purpose was a declaratory judgment as to the meaning and constitutionality of the act, with the injunction proceedings ancillary only, or whether it should be considered as an injunction proceeding primarily, with the request for a declaratory judgment merely ancillary thereto.

Our declaratory judgment statute, sections 4385, 4386, 4387, Revised Code 1928, sections 27-701, 27-702, 27-703, Arizona Code 1939, read respectively, so far as material to the present case, as follows:

"Declaratory judgments authorized -- Form and effect. -- Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed, and the action shall not be open to the objection that a declaratory judgment only is prayed for. The judgment may be either affirmative or negative, and has the force and effect of a final judgment, subject to appeal as in other actions."

"Person interested or affected may have declaration. -- Any person interested under a deed, will, written contract or other writing, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder. A contract may be construed either before or after there has been a breach thereof."

"Person beneficially interested may have declaration -- Enumeration not a limitation. --...

"The enumeration in this and the preceding sections does not limit or restrict the exercise of the general powers conferred, in any action where declaratory relief is sought, in which a judgment will terminate the controversy or remove an uncertainty."

Upon a careful examination and comparison of the pleadings, the following situation appears therein: Hammond claimed that the company was engaged in certain illegal practices which seriously injured his business. The company admitted the practices but insisted they were perfectly legal. This issue depended upon the meaning and validity of the act. There was thus a real controversy between the parties in regard to a right claimed by one and denied by the other which...

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9 cases
  • State v. Book-Cellar, Inc.
    • United States
    • Court of Appeals of Arizona
    • 19 Enero 1984
    ...of the temporary restraining order. See State v. Williams, 12 Ariz.App. 498, 472 P.2d 109 (1970); Hammond v. A.J. Bayless Markets, Inc., 58 Ariz. 58, 117 P.2d 490 (1941). CONCLUSION For the foregoing reasons, the order of the trial court dissolving the temporary restraining order is affirme......
  • Podol v. Jacobs, 4837
    • United States
    • Supreme Court of Arizona
    • 28 Octubre 1946
    ...... 97, 283 P. 281; Kleck v. Wayland, 53 Ariz. 432, 90. P.2d 179; Hammond v. A. J. Bayless Markets, 58 Ariz. 58, 117 P.2d 490. The act is remedial ...Bruce, 245 Mass. 531, 139. N.E. 650; 455 Seventh Avenue Inc. v. Frederick Hussey. Realty Corp., 295 N.Y. 166, 65 N.E.2d 761; Hall v. ......
  • Trico Electric Cooperative, Inc. v. Ralston, 5040
    • United States
    • Supreme Court of Arizona
    • 12 Julio 1948
    ...... it. See sections 27-701, 27-702, 27-703, A.C.A.1939;. Hammond v. A. J. Bayless Markets, Inc., 58 Ariz. 58,. 117 P.2d 490; Podol v. Jacobs, supra. . . ......
  • Scarborough v. Central Arizona Light And Power Co.
    • United States
    • Supreme Court of Arizona
    • 6 Octubre 1941
  • Request a trial to view additional results

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