Neyens v. Donato, 4957

• Decision Date: 08 March 1948
• Docket Number: 4957
• Citation: 188 P.2d 588,67 Ariz. 1
• Parties: NEYENS et ux. v. DONATO et al
• Court: Arizona Supreme Court

188 P.2d 588

67 Ariz. 1

NEYENS et ux. v. DONATO et al

No. 4957

Supreme Court of Arizona

March 8, 1948

Appeal from Superior Court, Maricopa County; Harold R. Scoville Judge.

Judgment affirmed.

Wm. P Lutfy and Robert R. Weaver, both of Phoenix, for appellants.

Gust Rosenfeld, Divelbess, Robinette & Linton, of Phoenix, for appellees.

Stanford Chief Justice. LaPrade and Udall, JJ., concurring.

OPINION

Stanford, Chief Justice.

Appellants filed their action in forcible detainer against appellees on March 2, 1946. The summons issued in this case required appellees to answer the complaint on March 7, 1946, and on that date appellees filed both an answer and cross complaint, at which time the court set the case for a jury trial on March 14, 1946. The record shows that on March 11, 1946, before the trial date, appellants filed a motion to strike certain portions of the counterclaim and also filed a motion to dismiss the counterclaim on the ground that the only issue involved in the case was the right of possession, and on the further ground that the counterclaim failed to state facts sufficient to constitute a cause of action against the appellants upon which relief could be granted. Both the motion to strike and the motion to dismiss were argued on that date. The court entered an order denying the motion to strike, taking the motion to dismiss under advisement. On March 11th the court also entered the following order by stipulation: "It is ordered, by stipulation, for the severance of issues raised by the Complaint and Answer and by Cross-Complaint for the purposes of trial, and directing that issues raised in forcible entry and detainer in the Complaint and Answer be tried on March 14, 1946, at 9:30 A.M. to a jury."

At the trial on the date set only the issue of forcible detainer was presented, and after appellants introduced their testimony and closed their case the appellees moved that the court instruct the jury to return a verdict of not guilty as to defendants, and thereupon the appellants moved for a nonsuit which the court granted and dismissed the complaint in forcible detainer without prejudice. Also, the court ordered that the counterclaim of appellees remain pending for adjudication.

The minute entries of the trial court further show that on March 18, 1946, the trial court denied appellants' motion to dismiss the counterclaim and made an order allowing appellants ten days additional time to plead further to same.

On April 8th the court denied appellants' motion for a bill of particulars and authorized appellees to file an amended counterclaim forthwith. On April 29th the trial court set the issues raised by the counterclaim and the answer thereto for trial before a jury.

Since the forcible detainer action brought by the appellants was dismissed by the court because of a voluntary request for dismissal on the part of the appellants, it left for determination only the counterclaim of the appellees. Appellees alleged in their counterclaim that in Chicago, Illinois, on December 6, 1945, they entered into a certain oral agreement with appellants by the terms of which appellees agreed to leave their employment and residence in Chicago on December 11, 1945, and come to Phoenix, Arizona, at their own expense, and at the La Fiesta Motor Court in Phoenix, which belonged to the appellants, establish, within a reasonable time, and operate a health studio in that portion of the premises known at the "bath-house" and the appellees agreed further to install in said "bath-house" at their expense necessary equipment for the conduct and operation of said health studio; also to make such alterations, repairs and improvements to said "bath-house" that would be necessary to convert the same into a health studio; that they would clean, paint and serve as lifeguards at the swimming pool operated by appellants at said place and perform many other things in connection therewith, for a term of one year from the date of their agreement; that by such agreement it was understood that no rent would be charged appellees during the first six months; that appellants arrived in Phoenix, Arizona, for the purpose aforesaid on the 17th day of February, 1945, and were given charge of said "bath-house" and continued to use and occupy the same in accordance with said agreement until March 14, 1946; that appellees expended large sums of money in carrying out their obligation as aforesaid.

The appellees in their counterclaim further alleged that the appellants for the purpose of ousting these appellees from said premises wrongfully and unlawfully disturbed them and interferred with their lawful occupancy of said premises, and about the 1st day of March unlawfully attempted to evict and oust them from the premises and later entered the bath-house and removed therefrom certain property without right or consent of the appellees. On the 14th day of March, 1946, appellees were served by appellants with a written demand that they immediately quit and vacate the premises; that appellees brought their action by this counterclaim in the sum of $ 3,000 for actual damages sustained by them and for the sum of $ 2,000 for punitive damages.

In the second cause of action set up in the counterclaim appellees asked for the sum of $ 5,000 for labor and materials furnished in the repair of said "bath-house". At the close of the trial of the issues raised under the counterclaim, which was had before a jury, the appellants moved to dismiss as to that portion of the first cause of action asking for punitive damages and also moved for dismissal of the second cause of action. The court granted the motion to dismiss as to the second cause of action but took the motion to dismiss as to punitive damages under advisement and denied the motion to dismiss the entire first cause of action. After both parties rested, however, the motion to dismiss as to punitive damages was denied and the verdict of the jury was brought in in favor of appellees assessing their damages in the sum of $ 3,000.

Before entering judgment the trial court on September 14, 1946, directed that there be a remittur by the appellees in the sum of $ 1,400, otherwise a motion for new trial would be granted. Thereafter on the 16th day of September, there was a remittur of said sum by these appellees and it is from the denial of appellants' motion for new trial, and the judgment rendered herein, that this appeal was taken.

The material assignments of error presented by the appellants can be largely determined by a solution of the question whether under the circumstances of this case a counterclaim may be pleaded and later tried in a forcible detainer action.

In the recent cases of Hinton v. Hotchkiss, 65 Ariz. 110, 174 P.2d 749 and Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394, there was involved an interpretation of Section 27-1207, A.C.A.1939, which reads as follows: "Right of possession only issue -- Verdict -- Continuance. -- On the trial of an action of forcible entry, or of forcible detainer, the only issue shall be the right of actual possession; and the merits of the title shall not be inquired into * * *."

In both cases we held that the...