Merryman v. Sears

• Decision Date: 25 October 1937
• Docket Number: Civil 3877
• Citation: 50 Ariz. 412,72 P.2d 943
• Parties: HOLLAND MERRYMAN, Appellant, v. W. P. SEARS, Appellee
• Court: Arizona Supreme Court

72 P.2d 943

50 Ariz. 412

HOLLAND MERRYMAN, Appellant, v. W. P. SEARS, Appellee

Civil No. 3877

Supreme Court of Arizona

October 25, 1937

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

Mr George F. Macdonald, for Appellant.

Messrs Phillips, Holzworth & Phillips, for Appellee.

OPINION

ROSS, J.

The plaintiff, W. P. Sears, brought this action on February 10 1936, against the defendant, Holland Merryman, on her promissory note for $14,900, dated August 1, 1928, bearing interest at 8 per cent. per annum and payable on or before five years after date, as modified by an agreement dated March 31, 1933, extending the time of payment to April 1 1934, reducing the principal to $12,000 and the interest to 6 per cent. per annum, and to foreclose a real estate mortgage given by defendant as security to the note.

The defendant by her second amended answer admits giving the note and mortgage to the plaintiff; denies that plaintiff is the owner and holder thereof; pleads payment and denies that she is indebted to plaintiff in any sum whatever.

When all the evidence was in, plaintiff made a motion that the court instruct the jury to return a verdict in plaintiff's favor and the motion was granted. The verdict was for $12,000, with interest at 6 per cent. per annum from February 1, 1936, and for attorney's fees taxed at $250. The judgment foreclosed the mortgage lien and ordered the property sold to satisfy the judgment but made no provision for any deficiency.

The defendant has appealed. She, by her assignments, suggests several reasons why the judgment should not stand, such reasons being:

(1) The refusal of the court to grant defendant a continuance under the moratorium act approved February 15, 1935, being chapter 9, Laws 1935. The defendant in her answer applied for such continuance giving as a reason therefor

"that these defendants are desirous of paying these obligations against said property, but due to the fact of the depressed condition now existing in the United States, and especially in this locality, these defendants have been unable to refinance said loan, or obtain sufficient means with which to pay off said indebtedness."

On April 6, 1936, the motion for continuance was heard, at which hearing five witnesses were sworn and testified, and on April 8th documentary evidence was introduced, at the conclusion of which the motion for continuance was denied. The so-called moratorium act provides that the court may continue actions for foreclosure of certain real property mortgages "unless upon hearing of said application good cause is shown to the contrary" (section 2). The oral testimony taken at the hearing of the motion for continuance is not before us and we assume that it supported the court's order denying the application.

(2) The refusal of the court, on defendant's motion or request made on the day of trial, to continue the case until plaintiff's attendance could be secured so that defendant could cross-examine him as an adverse witness under section 4416, Rev. Code 1928.

On April 20th the trial of the case was set down for May 16th and thereafter reset several times and finally for July 14th. Defendant was present or represented by counsel at each of these settings. On the day of trial plaintiff was ill in California where later he died, never recovering from his illness. The only showing made by defendant for continuance was the statement of her attorney, when the case was called for trial, to the effect that "it is very important that plaintiff himself be here" and that "it is vital to the issues of this case." No showing was made of what defendant could or expected to prove by cross-examination of plaintiff, or that she was not in the possession of all material facts of the case, or that what plaintiff would testify to was not cumulative of her own testimony, or that she did not know of plaintiff's illness and inability to be present until too late to take his deposition. In Arnett v. Peterson, 24 Ariz. 405, 210 P. 683, 684, we said:

"A motion for a continuance is addressed to the sound judicial discretion of the trial court; and, unless that discretion is abused it will not be interfered with by the appellate tribunal."

See, also, Wright v. Burhart, 35 Ariz. 246, 276 P. 837, and Schuster v. Schuster, 42 Ariz. 190, 23 P.2d 559. In Boardman v. Taylor, 66 Ga. 638, it was held that, if one expects to make a witness of an adversary, he should take proper measures by subpoena, or interrogatories, as the case may require, to procure such testimony.

(3) "The court erred in rejecting certain evidence offered by the defendant at the trial." This is about as indefinite as it is possible for an assignment to be made. It invites the court to search the record, including the transcript of the testimony, for possible error in the rejection of evidence offered by the defendant and to determine, if there were more than...