Klinger v. Conelly, CA-CIV

• Decision Date: 02 November 1965
• Docket Number: CA-CIV
• Citation: 407 P.2d 108,2 Ariz.App. 169
• Parties: Max X. KLINGER and Joan Klinger, C. Edgar Goyette, Cornelia R. Goyette and C Edgar Goyette, Jr., Appellants, v. W. F. CONELLY and Pauline Conelly, his wife, Fred G. Kennedy and Ruth D. Kennedy, his wife, John J. Cramer, Appellees. * 287.
• Court: Arizona Court of Appeals

Page 108

407 P.2d 108

2 Ariz.App. 169

Max X. KLINGER and Joan Klinger, C. Edgar Goyette, Cornelia R. Goyette and C Edgar Goyette, Jr., Appellants, v. W. F. CONELLY and Pauline Conelly, his wife, Fred G. Kennedy and Ruth D. Kennedy, his wife, John J. Cramer, Appellees. ^*

2 CA-CIV 87.

Court of Appeals of Arizona.

Nov. 2, 1965.

Johnson, Darrow, D'Antonio, Hayes & Morales, by J. Mercer Johnson, Tucson, for appellants.

Cusick & Watkins, by E. T. Cusick, Tucson, for appellees Conelly.

Fickett & Dunipace, by William S. Dunipace, Tucson, for appellees Kennedy and Cramer.

STEVENS, Chief Judge.

This consolidated appeal relates to procedural problems arising out of the inadequacies of trial preparation in behalf of the plaintiffs-appellants. In the trial court throughout the entire proceedings, including the entry of judgment, the plaintiffs were represented by counsel other than the counsel on appeal.

Early in the year 1960 the plaintiffs filed three separate quiet title actions. In each of the complaints there was an identical description by lot and block together with a metes and bounds area. The complaint acknowledged that the property of the plaintiffs was subservient to certain easements set forth in deeds recorded in specified books and pages of the office of the County Recorder. All of the defendants in their respective answers plead an easement across the property of the plaintiffs.

The three cases were consolidated for trial and on the 9th day of April 1962 Judge Molloy conducted a pretrial conference and the record reflects a detailed pretrial order. Matters material to the trial were set forth in the pretrial order including: Plaintiffs' Exhibit 1 was marked for identification. This exhibit was the plat of a 1958 survey of the property which the plaintiffs owned which property is the subject of the quiet title actions, the plat disclosing an area designated as 'easement.' Exhibit 2 was a plat of Summerhaven on Mt. Lemmon which plat was prepared in the year 1926. (This exhibit was received in evidence at the trial without objection.) Defendant Conelly's Exhibit D in evidence, a deed to an easement with a metes and bounds description which description did not correspond to the metes and bounds description contained in the complaint. The exhibit was the original recorded document, the same having been recorded in the year 1947 and bearing thereon the recording data by book and page, being different from the book and page information set forth in the plaintiffs' complaints. The pretrial order further established certain titles and recited that by stipulation the issues to be tried were:

'1. Whether or not the roadway which is being used by the defendants is located upon the property owned by the plaintiffs;

'2. Whether or not such roadway has been used open, notoriously and adversely by the defendants or their predecessors in interest for a period of ten years prior to the filing of plaintiffs' complaint;

'3. whether plaintiffs may have acquired the roadway by perscription (sic), and, if so, whether the public has been openly, notoriously and adversely using said roadway for more than ten years prior to the filing of plaintiffs' complaint;

'4. whether or not the roadway now being used by the defendants is the easement granted by Conellys' Exhibit D in evidence.'

The case was tried to the court without a jury and commenced in the City of Tucson on the 25th day of April 1962. The record reflects the then crowded condition of the Court House in that the case was called for trial 'In Jury Room No. 2. of the Court House, Pima County, Ari ona'. One witness was sworn and testified and on cross-examination it was developed that the area of the sub-division known as Summerhaven on Mt. Lemmon (which is several thousand feet in elevation above that of Tucson) was rough terrain and that the sub-division plat did not accommodate itself to the terrain in that some of the roads were practically not useable. It was also established that quite some time prior to the 1958 survey there was a roadway or perhaps it could be better expressed as a route used by vehicles, across the plaintiffs' land in the direction of the cabins of the defendants.

Upon the conclusion of this witness's testimony, and pursuant to stipulation, the trial recessed to an inn in Summerhaven. Pursuant to a further stipulation, the court then proceeded to the area in question with a surveyor who pointed out various locations upon the terrain after which the court recovened at the inn. The record reflects that the participants were directed to find seats and 'make themselves as comfortable as the circumstances will permit, before the fireplace in the main room of the * * *' inn. The surveyor testified that he was unable to say that the roadway delineated on Exhibit 1 was identical to the easement set forth in Exhibit D and the he admitted that the descriptions were not the same. The court observed that an examination of Exhibit 1 did not show the roadway which was pointed out on the land. Plaintiffs' counsel then stated 'Let me state to the Court that this is, of course, a surprise to me, and I naturally assumed that the * * * survey was made in accordance with the legal descriptions'. Counsel further stated, '* * * I feel that I must, because of what has developed here, ask that the case be continued so that we may have an adequate and proper survey made in accordance with the legal descriptions of the properties of the parties'. Whereupon other witnesses were sworn and testified on behalf of the plaintiffs. Upon completion of this testimony plaintiffs' counsel addressed the court and stated '* * * at this time, because of the failure of our surveyor to be able to establish very properly the exact location of the easement and of the road, I am at this time forced to ask the Court for a continuance, so that the survey may be made in proper order. We naturally do not want to rest, * * *'.

The trial court made a preliminary indication that the court felt that this might be appropriate whereupon the defendants requested leave to be heard and they were heard entering serious objection to any continuance; urging the fact of the pretrial; the opportunity to prepare; and that the request for further time is not a...