Miller v. Kearnes

• Decision Date: 17 June 1935
• Docket Number: Civil 3557
• Citation: 45 Ariz. 548,46 P.2d 638
• Parties: M. E. MILLER, Appellant, v. H. L. KEARNES, Appellee
• Court: Arizona Supreme Court

46 P.2d 638

45 Ariz. 548

M. E. MILLER, Appellant, v. H. L. KEARNES, Appellee

Civil No. 3557

Supreme Court of Arizona

June 17, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.

Mr John C. Lee and Mr. Harold Baxter, for Appellant.

Mr George F. MacDonald and Mr. James E. Nelson, for Appellee.

OPINION

LOCKWOOD, C.J.

This is a suit by H. L. Kearnes, hereinafter called plaintiff against M. E. Miller, hereinafter called defendant. There were two causes of action set up in the complaint; the first being for the cancellation of a certain realty mortgage given by plaintiff to defendant, and the second for damages arising out of the same transaction. Defendant answered and then set up two pleas in bar to the first cause of action. The first was that plaintiff had in a previous suit elected to proceed on an action for damages, and that such election was a bar to his action for cancellation of the mortgage. The second was that defendant had brought suit to foreclose the mortgage in the state of California, the lands involved being situated there, which suit had gone to judgment in favor of defendant, and that a decree of foreclosure of the mortgage had been entered therein. The case was at first presented to a jury, but after the evidence was all in the court held there was not sufficient to sustain the second cause of action for damages, and granted an instructed verdict in favor of defendant thereon. Thereafter, it held that there was no conflict in the evidence on the first cause of action, and there were no facts for the jury to decide, whereupon it was discharged and the court took the matter under advisement, finally rendering judgment in favor of plaintiff for a cancellation of the mortgage in question or, as an alternative thereto, if foreclosure and sale had been had in the state of California upon said mortgage, that defendant "make, execute and deliver to the plaintiff, H. L. Kearnes, a good and sufficient deed of conveyance conveying to the said H. L. Kearnes clear fee simple title to the above described premises." After the usual motion for new trial had been made and overruled, this appeal was taken.

There are some six assignments of error which read as follows:

"Assignment of error No. 1. The Court erred in assuming jurisdiction of an action to cancel a note and mortgage on property situated in a sister State and upon which foreclosure had begun and was pending (same parties to each action).

"Assignment of error No. 2. The Court erred in overruling defendant's plea in bar.

"Assignment of error No. 3. The Court erred in denying defendant's motion for a directed verdict at the close of plaintiff's case.

"Assignment of error No. 4. The Court erred in rendering judgment for relief not prayed for in plaintiff's complaint.

"Assignment of error No. 5. The Court erred in rendering judgment contrary to the maxims of equity.

"Assignment of error No. 6. The Court erred in rendering judgment upon which there was not showing defendant could perform."

Appellee has objected thereto on the ground that they are not in conformity with subdivision 1, rule XII, of this court, which reads, in substance, so far as material, as follows:

"1. All assignments of error must distinctly specify each ground of error relied upon and the particular ruling complained of...."

On examining the foregoing assignments of error, we are of the opinion that the second, third, fourth and fifth do not comply with rule XII. They are entirely general in their nature, and do not in any way point out to this court the particular error complained of, but leave it to us to determine from an examination of the record and the transcript of evidence as to whether or not there be any error therein. We have held repeatedly that we will not consider such assignments of error. Thornburg v. Frye, 44 Ariz. 282, 36 P.2d 548, and cases cited therein. Nor are they aided by argument in the brief. Wootan v. Roten, 19 Ariz. 235, 168 P. 640; Reid v. Van Winkle, 31 Ariz. 267, 252 P. 189.

We think, however, that the first and sixth assignments are sufficient to cause us to consider them. The first is, in substance, that the courts of Arizona had no jurisdiction to consider an action to cancel a note and mortgage for fraud when the property on which the mortgage was given was situated in a sister state, and foreclosure proceedings on the mortgage had already begun and were pending. The plea of defendant is that the California suit was commenced before the one at bar, but that judgment of foreclosure was rendered therein after the present case had been filed, but before it had gone to judgment. If the objection to the jurisdiction of the court is intended to go to its right to entertain this case when it was first filed, the objection is not well taken, for it is practically universally held that a suit which is pending in the court of another state cannot be pleaded in abatement of an action subsequently commenced, even though the later action is between the same parties and on the same cause, and the court of the state in which the prior suit is pending has complete jurisdiction. Douglass v. Phenix Ins. Co., 138 N.Y. 209, 33 N.E. 938, 34 Am. St. Rep. 448, 20 L.R.A. 118; H. C. Miner Lithographic Co. v. Wagner, 177 Mass. 404, 58 N.E. 1020; Sandwich Mfg. Co. v. Earl, 56 Minn. 390, 57 N.W. 938; Greer v. Cook, 88 Ark. 93, 113 S.W. 1009, 16 Ann. Cas. 671; Drake v. Brander et al., 8 Tex. 351.

If, however, it is the contention of defendant by this assignment that when foreclosure was had of the mortgage in California, the entire matter became res adjudicata and a bar to a judgment in the present action under article 4, section 1, of the Federal Constitution, the question requires a more careful consideration. It is, of course, the general rule of law that even though the res which is ultimately, though indirectly, to be affected by the judgment of a court of equity is within another state or country, if the parties are all within the jurisdiction of the court the suit may be maintained, and any remedies which directly affect and operate upon the person of defendant and not upon the res may be granted; obedience to the decree of the court being enforced by proceedings in the nature of contempt. Muller v. Dows, 94 U.S. (4 Otto) 444, 24 L.Ed. 207; Phelps v. McDonald, 99 U.S. (9 Otto) 298, 25 L.Ed. 473; Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65, 17 Ann. Cas. 853, 23 L.R.A. (N.S.) 924.

In this case the plea in bar showed only that the suit to foreclose the mortgage was in another state and did not allege that plaintiff herein was properly served with process, or that he ever appeared in such suit. If he had been served or an appearance had been made, since the affirmative matter pleaded in the first cause of action in this case could have been set up as a defense to the foreclosure, it might well be said that the judgment in California was res adjudicata on such defense as against him, for it is the rule that a judgment is res adjudicata not only as to the matters which were litigated, but as to those which might have been litigated therein. 34 C.J. 856 and notes. This, however, only applies when the party against whom the judgment runs was served personally or appeared therein. If he was not, only a judgment in rem would be valid as against him, and that only as to the issues necessarily litigated, and not...