Knight v. DeMarcus
| Decision Date | 29 March 1967 |
| Docket Number | No. 8228,8228 |
| Citation | 102 Ariz. 105,425 P.2d 837 |
| Parties | Betty Jo KNIGHT et al., Appellants, v. Cecil DeMARCUS et ux., Appellees. |
| Court | Arizona Supreme Court |
John M. Levy, Phoenix, Emmett R. Feighner, Phoenix (deceased), for appellants.
Vanlandingham, Stoneman & Lynn, Max M. Klass, Phoenix, for appellees.
Plaintiff, Cecil DeMarcus, brought a quiet title action in the Superior Court of Maricopa County. From an order granting plaintiff a summary judgment, defendants appeal.
Cecil DeMarcus acted as special master in a divorce action involving appellant Josephine Hanner, Superior Court case No. 49044, and was awarded a fee of $5,072.10 for his services. Rule 53(a), Rules of Civil Procedure, A.R.S. 16. This award was subsequently affirmed by this court in Hanner v. Hanner, 95 Ariz. 191, 388 P.2d 239, 1 in which we held that the trial court was properly acting within its discretion in ordering Josephine Hanner, defendant both in the divorce action and the present quiet title action, to pay the master's fee.
The fee had set by the lower court in June 1959, but remained unpaid in September of the same year when the plaintiff, DeMarcus, secured an execution against the property presently in question. A sale following the execution was made in October and the property was purchased by the plaintiff for a price approximately equal to the judgment.
In April of 1962 a sheriff's deed was issued to DeMarcus, and it is on the basis of this deed that he now seeks to quiet title in the described property. The named defendants are Josephine Hanner, Betty Jo Knight (daughter of Josephine Hanner) and two creditors, Glenn Nesbitt and Gladys Barnd who claim a lien interest in the land. On plaintiff's motion, the trial court granted him a summary judgment and subsequently denied the defendants' motion for a new trial.
Rule 56(e), Rules of Civil Procedure, A.R.S. 16 provides that once a motion for summary judgment has been made and supported, the adverse party must answer in detail as specific as that of the moving papers or else summary judgment will be entered against him. Because plaintiff's deposition and affidavits presented a prima facie case for quiet title (infra), Lujan v. MacMurtrie, 94 Ariz. 273, 383 P.2d 187, and because defendants Nesbitt and Barnd failed to answer with opposing affidavits, we conclude that summary judgment was properly entered against them. We turn now to a consideration of the summary judgment granted against defendants Josephine Hanner and Betty Jo Knight.
Summary judgment may be properly granted when, one, the pleadings, depositions, and affidavits present no genuine issue as to any material fact and, two, the moving party is entitled to a judgment as a matter of law. Rule 56(c), Rules of Civil Procedure, A.R.S. 16. Defendants present several reasons why they think summary judgment was improvidently granted in the present case, these being discussed below.
First, defendants contend that plaintiff's affidavit was defective because it fails to state it was made upon his personal knowledge and because neither the affidavit nor the attached exhibits were sworn to or certified. We have previously held that when, as here, the contents of an affidavit show that its material parts are statements of the affiant's personal knowledge, it is unnecessary to specifically state that the statements therein are a part of the affiant's personal knowledge. Hoffer v. Wetzel, 95 Ariz. 384, 390 P.2d 911.
Likewise we held in Hoffer v. Wetzel, supra, that failure to certify or swear to exhibits or affidavits is not a jurisdictional defect and that an objection in this respect may be waived. Since no objection for failure to comply with this required formality was raised while the lower court was considering the motion for summary judgment, we deem the objection to have been waived. Moreover, it would be purposeless, under the circumstances, to send the case back to the trial court for the sole purpose of having plaintiff correct the errors in his affidavit. See Colby v. Bank of Douglas, 91 Ariz. 85, 370 P.2d 56.
Secondly, defendants contend that there were several issues of fact that should properly have prevented the summary judgment. First of these issues advanced by the defendants is whether the plaintiff had given defendants 'notice' of his intention to execute on the property in question. They argue that Rule 53(a), Rules of Civil Procedure, A.R.S. 16 imposes such a notice requirement. We disagree. The pertinent portion of that rule is as follows:
'* * * (W)hen the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party.'
A cursory reading of the rule makes it evident that the word 'notice' refers to a notice to the debtor of his obligation and that the rule does not then further require a notice of an intent to execute, once notification of the judgment is properly given. Therefore whether or not defendants had notice of the intended execution is immaterial and does not stand in the way of a summary judgment. Maloy v. Taylor, 86 Ariz. 356, 346 P.2d 1086.
Defendants further contend that the question of whether the property executed upon was held in joint tenancy between defendants Josephine Hanner and Betty Jo Knight, was a material issue of fact. This matter could be material only to Betty Jo Knight who was not a party to the Hanner v. Hanner action, supra, and she specifically disclaimed, under oath, any interest in the property. The following is taken from the Supplemental Abstract of Record:
...
To continue reading
Request your trial
-
Cagle v. Carlson
...v. Tom, 431 F.Supp. 1369 (D.Hawaii 1977). In Arizona, the rule of Endicott-Johnson enjoys continued vitality. In Knight v. DeMarcus, 102 Ariz. 105, 425 P.2d 837 (1967), cert. denied 390 U.S. 736, 88 S.Ct. 1437, 20 L.Ed.2d 270 (1968), for example, our supreme court held that a debtor was not......
-
Warren v. Delaney
...95 Misc.2d 720, 732, 410 N.Y.S.2d 950, supra; see Deary v. Guardian Loan Co., 534 F.Supp. 1178, 1185-1186, supra; cf. Knight v. DeMarcus, 102 Ariz. 105, 425 P.2d 837, cert. granted 389 U.S. 926, 88 S.Ct. 288, 19 L.Ed.2d 277, cert. den. as improvidently granted, 390 U.S. 736, 88 S.Ct. 1437, ......
-
State v. Crawford
...under the rule of such authorities as Wakeham v. Omega Construction Co., 96 Ariz. 336, 395 P.2d 613 (1964), and Knight v. DeMarcus, 102 Ariz. 105, 425 P.2d 837 (1967). Both of the parties advance opposing contentions that plaintiff's instruments of title are decisive of the litigation. We w......
-
Hanner v. Marcus 1967
...in the protections guaranteed by the due process clauses of either the Arizona or Federal Constitutions.' Knight v. DeMarcus, 102 Ariz. 105, 107-108, 425 P.2d 837, 839-840. 2 Sir James Parke served on England's bench from 1828-1855. 'His fault was an almost superstitious reverence for the d......