MacRitchie v. Stevens

• Decision Date: 26 March 1904
• Docket Number: Civil 833
• Citation: 76 P. 478,8 Ariz. 410
• Parties: CHARLES MacRITCHIE et al., Plaintiffs and Appellants, v. HELENA STEVENS et al., Defendants and Appellees
• Court: Arizona Supreme Court

76 P. 478

8 Ariz. 410

CHARLES MacRITCHIE et al., Plaintiffs and Appellants, v. HELENA STEVENS et al., Defendants and Appellees

Civil No. 833

Supreme Court of Arizona

March 26, 1904

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Pinal. F. M. Doan, Judge. Affirmed.

The facts are stated in the opinion.

W. H Griffin, for Appellants.

J. E O'Connor, for Appellees.

OPINION

DAVIS, J.

On February 11, 1902, Charles MacRitchie and John Nichol brought an action in the district court of Pinal County against the appellees, Helena Stevens, Mary Truman, Margaret Phy, and W C. Truman, sheriff, to set aside a judgment of said court entered on February 27, 1900, foreclosing a mortgage on certain lands in said county, and also to restrain the sheriff from proceeding with the sale of said lands under said judgment. As grounds for the relief thus sought, the plaintiffs alleged their ownership of the real estate affected, that they were without knowledge of the rendition of said judgment, that the same was based upon various errors of law and fact, and that a sale thereunder would cast a cloud upon their title. The complaint was answered, and there was a trial upon the issues, which resulted in a judgment on May 9, 1903, denying to the plaintiffs the relief for which they prayed. The appeal is from this judgment.

Of the ten assignments of error contained in the brief of the appellants, only the seventh is entitled to consideration under the rules of this court. This assignment alleges "The court erred in refusing to set aside the judgment of February 27, 1900, on the ground that the defendants then -- plaintiffs and appellants now -- had no knowledge of the pendency of the action, and were deprived of an earlier defense to the judgment." The foreclosure suit in which the judgment of February 27, 1900, was entered, was No. 936 upon the records of the district court. The appellees, other than the sheriff, were the plaintiffs in that case. Charles MacRitchie, Americus L. Pogue, and Edwin P. Drew were the defendants therein. It does not appear, however, that the appellant John Nichol was a party to the suit, or that he was in any position to be affected by the judgment therein. The record shows that an answer was filed and a defense made on behalf of the defendants MacRitchie and Pogue, and that the case was submitted to the court upon an agreed statement of facts, signed by the attorneys for the respective parties. The name of W. R. Stone, Esq., appears both in the answer and the agreed statement of facts as attorney for said defendants, and the transcript of the minute entries shows his presence in court in their behalf on the day when the case was submitted, and also on the day when the judgment was rendered. In the complaint which was filed by the appellants in the case now before us, we find the following averments: "Complainants allege that they were and are now non-residents of the territory of Arizona, residing in Chicago, Illinois, and not familiar with what was passing in the courts of Arizona, and for that information depended exclusively upon their attorney, W. F. Stone, a resident of Florence, Arizona. Complainants never knew of the entry of the judgment of...