Olds Bros. Lumber Co. v. Rushing, 4840

• Decision Date: 25 March 1946
• Docket Number: 4840
• Parties: OLDS BROS. LUMBER CO. v. RUSHING et al
• Court: Arizona Supreme Court

167 P.2d 394

64 Ariz. 199

OLDS BROS. LUMBER CO. v. RUSHING et al

No. 4840

Supreme Court of Arizona

March 25, 1946

Appeal from Superior Court, Navajo County; W. E. Ferguson, Judge.

Orders reversed and case remanded to superior court to proceed pursuant to instructions.

P. H Brooks, of Winslow, for appellant.

No appearance for appellees.

Thomas Superior Judge. Stanford, C. J., and Morgan, J., concur. Judge Arthur T. La Prade, being disqualified, the Honorable Frank E. Thomas, Judge of the Superior Court of Cochise County, was called to sit in his stead.

OPINION

Thomas Superior Judge.

As the appellant was the plaintiff in the lower court it is more convenient to refer to the parties hereafter as the plaintiff and defendants, respectively.

The plaintiff filed its action of forcible detainer in the Justice Court of Winslow No. 2 Precinct, County of Navajo, against the defendants C. A. Rushing and Emmett Sieck. It is alleged in its complaint it was the owner of certain described property in the City of Winslow, Arizona, and that the defendant Rushing had been a tenant at sufferance in said premises for quite some time; that, prior to the filing of the complaint, the plaintiff demanded that the defendant either vacate said premises or commence the payment of rent at Twenty Dollars ($ 20) per month, which the defendant promised and agreed to pay, but failed to carry out his promise in that regard, and concluded with a prayer for judgment for the possession of the premises. The defendant Sieck was joined as a party defendant for the reason that Rushing had permitted him to occupy a part of the premises.

Service was had upon the defendants and the defendant Rushing filed his answer claiming title to the premises by reason of his having purchased a certificate of redemption on the property from the Treasurer of Navajo County before the action was filed in the Justice Court, and denied generally the allegations in plaintiff's complaint of the relationship of landlord and tenant between the parties. At the same time he filed a Motion to Dismiss and a plea to the jurisdiction of the Justice Court on the grounds that the Justice Court had no jurisdiction to try and determine the issues in the action, making reference to Section 20-102 of the Arizona Code Annotated 1939.

The Justice of the Peace apparently overruled the defendant's motion to dismiss and his plea to the jurisdiction and tried the case, rendering judgment that the plaintiff was entitled to the possession of the property in question and judgment for the rent for the period of time involved, which sum was less than the Two Hundred Dollars ($ 200) jurisdictional limit of the Justice of the Peace, and the defendant perfected an appeal to the Superior Court of Navajo County.

Upon the receipt of the papers in the Superior Court the plaintiff moved to set the case for trial and the defendant made a written demand for trial by jury and the case was set for trial before a jury. On the day of the trial in the Superior Court all parties appeared and were represented by their counsel and a jury was drawn to try the case. After the jurors were selected they were excused and the trial court, upon making an examination of the pleadings, raised the issue of jurisdiction of the Superior Court on the appeal, and dismissed the appeal. The reporter's transcript of the ruling of the Court, as appears from the record, is as follows:

"By the Court: The Court having gone into the matters raised here in legal phase, it is the opinion of the Court that the appeal should be dismissed and there is unquestioned authority that the Justice of the Peace had no right to entertain any action when there is a question of title raised, and that on appeal this Court acquires no more jurisdiction than the Justice Court has. I take it you will just have to start over and this appeal is dismissed. I don't dismiss the action, but just the appeal. Costs are against the appellant."

The plaintiff then moved to vacate the Order dismissing the appeal and his motion was submitted to the Court upon stipulation of counsel and the Court entered its Order denying said motion. Thereafter the plaintiff filed its notice of appeal from the Order dismissing the case, the Order amending the Order of dismissal of April 23, 1945, and from the Order of the Court denying plaintiff's motion to vacate the orders dismissing the appeal.

This set of facts raises two questions on the appeal to this Court, viz.:

(1) Did the title or ownership of the property become an issue in the action in the Justice Court?

(2) Did the Superior Court commit error in its rulings dismissing the appeal from the Justice Court?

The defendant did not appear in this court and gave this court no assistance in the determination of the issues involved in this case. Since there was no trial in the Superior Court, we have no transcript of testimony before us and the abstract of record fails to throw any light on the question of ownership as alleged by the defendant in his pleadings, other than appears in his Answer and affirmative defense, in which the defendant claimed title to the property by reason of an allegation that he had redeemed the property from a tax sale and procured a certificate of redemption from the County Treasurer prior to the time the plaintiff's complaint was filed. His affirmative defense, however, contains no allegation that he had "a legal or equitable claim" in the premises and was therefore entitled to redeem the property as is required by Section 73-823 of the Arizona Code 1939. There does appear in the abstract of record, however, a sheriff's deed on foreclosure conveying the premises in controversy to the Olds Brothers Lumber Company, a corporation. Said deed recites that the Home Owners Loan Corporation had filed an action of foreclosure against Clarence A. Rushing and Jane G. Rushing, his wife, as parties defendant; that the said premises described therein were sold at public auction following an order of foreclosure and sale on the premises and that the Home Owners Loan Corporation had bid in the property and thereafter assigned its sheriff's certificate of sale to the Olds Brothers Lumber Company, a corporation; that no redemption had been made within six months after the date of sale; as a result the sheriff conveyed said premises to the plaintiff in this action. This sheriff's deed was dated July 23, 1937 and was recorded in the Recorder's Office of Navajo County on the 15th day of July, 1943. We have no way of knowing whether the defendant in the foreclosure suit, Clarence A. Rushing, was one and the same person as the defendant C. A. Rushing in this case; however, if Clarence A. Rushing and C. A. Rushing are one and the same person it may explain the reason why the defendant in this action made no allegation in his affirmative defense, that he had a legal or equitable claim in the property and was entitled to redeem under Section 73-823, supra.

A somewhat similar situation arose in the case of Sullivan v. Woods, 5 Ariz. 196, 50 P. 113, in which case the defendant made an allegation of claim of title to the premises and objected to the jurisdiction of the Justice Court, setting up facts in his answer on the basis of which the defendant claimed title. In that case the Justice of the Peace overruled the plea to the jurisdiction and was sustained by this court which, upon an analysis of the alleged defense and claim to title, ruled that the title to the property was not in question under the pleadings of the defendant and the Court held that the only issue under the pleadings was the right to possession of the premises.

It appears obvious from the ruling in the Sullivan case, supra, that the mere filing of a pleading claiming title to the premises does not make title an issue in the case and require the Justice of the Peace to certify the case to the Superior Court as provided in Section 20-102; as the question of whether the title to real property is involved in the case may be determined not only from the defendant's answer, but from the nature of the entire law suit as appears from all of the pleadings or the evidence in the case.

This leads us to a consideration of the nature of an action of forcible entry or detainer. Such actions are statutory proceedings, the only means of trying the right to the possession of property at common law being the common law action of ejectment. The common law action of ejectment is now codified in this and most states of this country, and in such an action the Court may determine the question of which party has the paramount legal title to the premises for the purpose of determining who has the right to possession. 28 C.J.S., Ejectment, §§ 4, 5, 7, 8, 9, and 10, pages 850 to 858.

Such however, is not the case in a forcible entry and detainer action, for the object of such an action is to afford a summary, speedy and adequate remedy for obtaining possession of the premises withheld by a tenant in violation of the covenants of his tenancy or lease, or otherwise withheld within the meaning of the statute defining forcible entry and detainer. Indeed, the statutes of this state make that very plain and indicate quite clearly that the right to actual possession is the only issue to be determined in such an action. While it is true that Section 20-102 of the Arizona Code, which confers jurisdiction of the justice of the peace in civil matters does provide that "* * * Justices of the peace shall have jurisdiction to try the right to the possession of real property where the title thereto or the ownership thereof is not a subject of inquiry in the action. If, in any such action the title or ownership of real property becomes an issue the justice shall so certify...