Ollason v. Glasscock

• Decision Date: 24 March 1924
• Docket Number: Civil 2029
• Citation: 26 Ariz. 193,224 P. 284
• Parties: RUTH MULFORD OLLASON, Appellant, v. C. B. GLASSCOCK and J. M. POLHAMUS, as Sheriff of Yuma County, State of Arizona, Appellees
• Court: Arizona Supreme Court

224 P. 284

26 Ariz. 193

RUTH MULFORD OLLASON, Appellant, v. C. B. GLASSCOCK and J. M. POLHAMUS, as Sheriff of Yuma County, State of Arizona, Appellees

Civil No. 2029

Supreme Court of Arizona

March 24, 1924

APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Affirmed.

STATEMENT OF FACTS.

On and prior to March 9, 1920, one W. L. Mulford and Alice Mulford his wife, were the owners of certain real property located in Yuma county, Arizona, and more particularly described as lots 4 and 5, block 5, Williams Second Addition to the town site of Somerton, in said county and state. On said date these parties conveyed the above-described property by warranty deed to one M. E. Burke, appellant's grantor, the said M E. Burke being a sister of Mrs. Mulford, and residing in the Mulford home "off and on" during the six years immediately preceding the transfer.

At the time of the conveyance Mulford was indebted to a lumber company in Somerton in approximately the sum of four hundred and fifty or five hundred dollars ($450.00 or $500.00), and was under contractual obligation with the appellee C. B Glasscock in to construct certain buildings for Glasscock in Somerton, at which time Mulford was in default, and had been since August 1, 1919; the evidence disclosing that Glasscock had made demands upon Mulford "over one hundred times" during the interim to complete the building according to contract. As to whether or not Mulford was further involved financially at the time of the conveyance is not altogether clear.

The property conveyed by Mulford to Burke, above described, was all the property owned by Mulford at the date of the conveyance.

On January 5, 1920, prior to the conveyance, Mulford and wife executed and delivered to M. E. Burke a writing unacknowledged, purporting to assign their interest in the property described to Mrs. Burke, and upon January 7, 1920, Mrs. Burke gave to W. L. Mulford a power of attorney in writing, empowering Mulford, among other things, "to make all contracts, and do all other acts of a business nature relating to my interest in real and personal property as effectually as I could do myself if personally present, with power of substitution and revocation, etc.," said power of attorney being subscribed and sworn to by Mrs. Burke before a notary public on the date of its execution, and on June 21, 1920, there was placed upon said power of attorney an internal revenue stamp, and upon July 28, 1920, a jurat of a notary public of Los Angeles was affixed to the same. The deed of conveyance recited a consideration of $10, and bore a fifty cent canceled internal revenue stamp.

Subsequent to March 9, 1920, and on, to wit, June 12, 1920, C. B. Glasscock, one of the defendants herein, instituted suit against the said W. L. Mulford upon the contract hereinbefore referred to, and upon January 24, 1921, recovered judgment by default against Mulford, in the sum of two thousand eight hundred and one dollars ($2,801.00). A writ of attachment issued against the property June 17, 1920, but, for some reason unexplained, the attachment lien was not foreclosed, and thereafter, upon the twenty-seventh day of January, 1921, a writ of execution and order of sale issued against said property above described, and upon January 29, 1921, J. M. Polhamus, then sheriff of Yuma county, noticed said property for sale for February 23, 1921, in accordance with the provisions of law relating thereto.

Subsequent to May, 1920, W. L. Mulford and Mrs. Burke resided in California.

The rentals derived from the property in question were paid direct to Mrs. Mulford until June, 1920, when she also removed to California, and from June until November, 1920, the rentals were placed to the credit of Mrs. Mulford in the bank at Somerton.

Messrs. Robertson & Lindeman and Mr. R. N. Campbell, for Appellant.

Mr. K. F. Miller Hinds and Mr. W. H. Westover, for Appellees.

OPINION

PHELPS, Superior Judge

(After Stating the Facts as Above). This action was instituted by Mrs. Burke, appellant's grantor herein, to enjoin the sale of the property in question by the sheriff of Yuma county upon the order of sale hereinbefore mentioned, and to adjudge title to said property to be in appellant's grantor, and that defendant Glasscock be decreed to have no interest therein by reason of his said writ of attachment or execution. The defense interposed by defendants is to the effect that the transfer of the property in question from Mulford to Burke was made with the intent to delay, hinder or defraud creditors; that Glasscock was a creditor of Mulford upon the date of the transfer; and that said conveyance was, under the laws of this state, void as to him. Appellant's grantor filed her reply, and issue was joined upon these questions which in the last analysis were the only questions to be determined by the trial court; that is, to wit, first, was the conveyance in question fraudulent and void as to creditors? and, second, was Glasscock a creditor of Mulford on the date of the conveyance?

The cause was tried to the court without a jury, and judgment rendered for appellee, from which an appeal has been taken to this court.

Appellant has presented for the consideration of the court twenty-seven assignments of error, and urged that each constitutes reversible error. Many of the assignments are not sufficiently specific in character to enable the court to determine the ground upon which they are predicated without reference to the argument relative thereto, and therefore will not be considered by the court. County of Pinal v. Heiner, 24 Ariz. 346, 209 P. 714, and cases therein cited.

Assignments 4, 5, 6, 13, 14, 16, 17, 18, 19, 21, 22 and 23 are predicated upon the expressions of the trial court in its written opinion incorporated in the record.

It is clear from reading the statute relating to appeals that such opinion does not properly constitute any part of the record on appeal, and is in no sense an order from which an appeal will lie. The mere fact that the opinion contains an order for judgment is immaterial, in that the records disclose that the order for judgment was in fact entered by the clerk on the minutes of the court on the date such opinion was filed, and appears in the record. Even, however, if the order for judgment embodied in the opinion were the only order for judgment appearing in the record, only the order itself would be reviewable by this court, and the reasons advanced by the court as disclosed by the opinion would be necessarily treated as surplusage, in view of the fact that the opinion shows upon its face that it is not intended as a finding of fact. In the absence of written findings of fact it will be presumed that the conclusions of the trial court on every necessary issue of fact were such as would support its judgment. Blackford v. Neaves, 23 Ariz. 501, 205 P. 587.

It is urged that the verification of the defendant's answer is defective, and under the rule laid down in Hankins v. Helms, 12 Ariz. 178, 100 P. 460, plaintiff was entitled to judgment on the pleadings. We do not think the rule therein enunciated is applicable, where the answer, as in this case, contains affirmative allegations diametrically opposed to the allegations contained in the complaint. Such affirmative allegations as effectually and effectively deny all the material allegations of the complaint as if they had been specifically denied in express language. Had the answer consisted of express denials of the allegations of the complaint, then the rule laid down in the case of Hankins v. Helms, supra, would apply.

It is claimed in assignments 2 and 3 that the trial court erred in refusing to strike certain portions of paragraphs 2 and 3 of the answer. We cannot agree with counsel that the allegations complained of in paragraph 3 constitute a legal conclusion and, even if it were true, the cause having been tried to the court without a jury, the refusal of the court to strike it, if error, would be...