Mounce v. Wightman

• Decision Date: 01 March 1926
• Docket Number: Civil 2405
• Citation: 243 P. 916,30 Ariz. 45
• Parties: H. E. MOUNCE and A. V. MOUNCE, Appellants, v. ELIZA J. WIGHTMAN and ROLLA WIGHTMAN, Appellees
• Court: Arizona Supreme Court

243 P. 916

30 Ariz. 45

H. E. MOUNCE and A. V. MOUNCE, Appellants, v. ELIZA J. WIGHTMAN and ROLLA WIGHTMAN, Appellees

Civil No. 2405

Supreme Court of Arizona

March 1, 1926

APPEAL from a judgment of the Superior Court of the County of Gila. Fred C. Struckmeyer, Judge.

Affirmed.

Mr. Jay Good and Messrs. McKenzie & Loose, for Appellants.

Mr. L L. Henry and Mr. W. D. Moore, for Appellees.

Lockwood J. McAlister, C. J., and Ross, J., concur.

OPINION

Lockwood J.

Henry Mounce and E. E. Mounce, his wife, were the owners of the O Cross, Three Lazy S, and Triangle E brands, together with all cattle in such brands ranging in Gila and Graham counties, Arizona. The brand had been duly recorded according to law. At different times they executed three chattel mortgages on the said cattle and their increase. The first mortgage was in favor of the First National Bank of Globe for approximately $ 2,600; the second was in favor of one J. W. Rais for some $ 1,700; and the third for some $ 35,000 in favor of Eliza J. Wightman and Rolla Wightman, hereinafter called plaintiffs. The indebtedness covered by the second and third mortgages was also secured by mortgages on real estate in Gila and Graham counties.

February 9th, 1924, plaintiffs brought suit in the superior court of Graham county to recover the indebtedness secured by the third chattel mortgage, asking for foreclosure of it, and of the realty mortgage securing the same indebtedness, making the First National Bank of Globe, which held the note secured by the first chattel mortgage, a party defendant. A receiver was appointed to care for the cattle until they were sold by order of the court in such suit, and, after the cattle were bought in by plaintiff Eliza Wightman, he remained in charge of them as her employee.

After the sale of said cattle and their increase under the special execution in the Graham county case, Alfreda Mounce and Louis Mounce, respectively the minor daughter and son of Henry Mounce and E. E. Mounce, claimed certain cattle branded Rafter O, part of which at least had been adjudged by the court in the Graham county suit to be of the increase of the mortgaged cattle, and which were also sold at the sheriff's sale. H. E. Mounce and A. V. Mounce, adult sons of Henry and E. E. Mounce, claimed a portion of the cattle sold under the O Cross and Triangle E brands, basing their claim on certain unrecorded marks and brands on such cattle, which had been placed on them in addition to the O Cross and Triangle E brands. The children, together with their parents, attempted to exercise the usual rights of ownership over the cattle claimed by them, and plaintiffs applied to the superior court of Gila county by this action for an injunction restraining the claimants from interfering with the cattle. The case was heard before the court without a jury, and the judgment awarded Alfreda and Louis Mounce thirty-five head of the Rafter O cattle, but determined that all the other cattle in controversy belonged to plaintiffs, and made the temporary injunction which had been issued at the commencement of the suit permanent. All four of the children appealed, but Alfreda and Louis Mounce dismissed their appeal, and the matter is now before us on the appeal of H. E. and A. V. Mounce, whom we will hereafter call the appellants.

There are some eighteen assignments of error which we will consider according to the legal propositions raised thereby. The first proposition of law is that the court erred in refusing to grant the defendants a trial by jury. It appears from the record that on the fifth day of June, 1924, defendants made a written demand for a jury trial. On the seventh day of June the court made the following minute entry:

"It appearing to the court that a jury was expressly waived, the trial of the case by jury is denied."

Whereupon the matter was set for hearing, and proceeded to trial before the court on the twenty-third day of June, 1924.

Article 2, section 23, of the Constitution, provides:

"The right of trial by jury shall remain inviolate, but provision may be made by law . . . for waiving of a jury in civil cases where the consent of the parties interested is given thereto."

Paragraph 508, Revised Statutes of Arizona of 1913 (Civil Code), reads in part as follows:

"A jury may be demanded by either party by a written demand filed with the clerk before the docket is called, or in open court at the time of the calling of the docket, and if not so demanded the right to a trial by jury shall be regarded as waived and the cause shall be tried by the court, unless the court shall otherwise order. . . ."

There is no doubt that in all cases, both at law and in equity, a party is entitled to a jury under our Constitution as a matter of absolute right. Brown v. Greer, 16 Ariz. 215, 141 P. 841.

This, however, is a right which may be waived by the parties. It is contended by appellant that paragraph 508, supra, provides the exclusive method of waiver, and that, since the record does not show the docket was called before the demand of June 5th, the right had not been waived. We do not think this contention is sound. The statute nowhere says that a jury may not be waived before the docket is called, but merely that, if it is not specifically demanded before that time it is deemed waived. We held in Jenkins v. Skelton, 21 Ariz. 663, 192 P. 249:

"The state Constitution, section 23, article 2, preserves the right of trial by jury, but provides that it may be waived by consent of the parties interested. It is silent as to how the waiver may be manifested. . . . It would seem that an implied consent to waive a jury trial is quite as conclusive when clearly shown as an express consent."

We think paragraph 508, supra, merely sets up one of the circumstances under which it shall be conclusively presumed that a trial by jury has been waived, but that it does not prohibit an implied waiver at other times and in other manners, and certainly not an express waiver.

The trial court found as a matter of fact, and so stated in the minutes, that a trial by jury had been waived. We cannot go back of that minute entry, and therefore hold that upon the record as it appears in this case defendants were not entitled to a jury trial.

We next consider those assignments of error which raise the point there was nothing in either the complaint or the evidence showing that appellants had ever committed any act which would justify the issuance of an injunction. Were this before us on an appeal from the order issuing the temporary injunction on the complaint and affidavits supporting it there would be some doubt as to whether the allegations of the complaint were sufficient to justify the issuance of an injunction against these appellants. The appeal, however, is taken from the judgment granting the permanent injunction rendered after appellants had answered fully and set up their claim of ownership to part of the cattle in controversy, and after a full hearing on the merits. The entire pleadings, taken with the evidence, are such that, if the judgment of the trial court as to the ownership...