Phoenix Title & Trust Company v. Horwath, Civil 3210
Decision Date | 13 February 1933 |
Docket Number | Civil 3210 |
Citation | 19 P.2d 82,41 Ariz. 417 |
Parties | PHOENIX TITLE & TRUST COMPANY, a Corporation, Appellant, v. S. T. HORWATH and JOSEPHINE HORWATH, His Wife, Appellees |
Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment reversed and case remanded, with instructions.
Messrs Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellant.
Mr. L J. Cox, Mr. L. C. McNabb and Mr. O. B. De Camp, for Appellees.
S. T Horwath and Josephine Horwath, his wife, hereinafter called plaintiffs, brought suit against the Phoenix Title & Trust Company, a corporation, hereinafter called defendant, to recover damages for the alleged negligence of defendant in its handling of a certain quitclaim deed deposited by plaintiffs with it as an escrow. The case was tried to a jury, which returned a verdict in favor of plaintiffs in the sum of $5,000, and after the usual motion for new trial was made and overruled the matter was brought before us for review.
The first question presented for our determination is the contention of plaintiffs that we are precluded from considering the evidence in the case for the reason that the motion for new trial was prematurely made. Section 3660, Rev Code 1928; Ellis v. First Nat. Bank, 19 Ariz. 464, 172 P. 281; Hammels v. Kreig, 29 Ariz. 218, 240 P. 348.
It appears from the minutes of the trial court on November 4th, 1931, that after the verdict of the jury was received the following entry was made: This entry on its face is not a rendition of judgment, but merely the preliminary order referred to in Moulton v. Smith, 23 Ariz. 320, 203 P. 562, and no motion for new trial could be filed until formal rendition of judgment in the manner stated in Kinsley v. New Vulture Mining Company, 11 Ariz. 66, 90 P. 438, 110 P. 1135.
Thereafter on March 26th of the ensuing year the defendant filed a motion for an order correcting such minute entry in accordance with what it claimed to be the true facts, which was supported by affidavit, and upon such motion the following minute entry was made: "It is ordered that there may be an order correcting the minute entry of Nov. 4, 1931, to read: 'Motion granted and it is Ordered for Judgment in accordance with the verdict.'" It is the contention of plaintiffs that the notice of appeal and supersedeas bond thereon having been given before March 26th, the court had lost jurisdiction to correct its minute entry as above set forth. Sam v. State, 33 Ariz. 421, 265 P. 622; Navajo R. Co. v. County Bank, 31 Ariz. 128, 250 P. 885.
It is defendant's position, on the other hand: First, that the court had not lost jurisdiction to make a correction of this kind, and, second, that plaintiffs having moved for judgment on November 4th, and having thereafter filed their cost bill and allowed the motion for new trial to be denied without suggesting that it was prematurely taken, are estopped from making such contention on this appeal. We are of the opinion that the position of defendant is correct on both grounds. While we have held several times that the trial court loses jurisdiction of a case for ordinary purposes after an appeal is taken, we have also held in the same cases it still has the jurisdiction to make such orders as are in the furtherance of the appeal, and we think correcting its record in order to show the true state of facts is certainly within the exception. Gotthelf v. Fickett, 37 Ariz. 413, 294 P. 837; Sam v. State, supra; Navajo Realty Co. v. County Bank, supra. We have further held that where counsel for an appellee participate in proceedings on the theory that the motion for new trial is timely they will be estopped from denying it. Maricopa County Municipal Water Conservation Dist. v. Roosevelt Irr. Dist., 39 Ariz. 357, 6 P.2d 898. We think the evidence is before us for such consideration as is proper.
We proceed next to examine the various alleged errors presented by defendant. In so doing a brief statement of the undisputed facts of the case is advisable. On April 1st, 1930, Library Court Apartment Company, a corporation, hereinafter called the company, as seller, and plaintiffs, as buyers, entered into an agreement for the purchase and sale of lots 7, 8, 9 and 10 in block 24, Neahr's addition to the city of Phoenix. The consideration agreed to be paid was $45,000, $5,000 being represented by a certain piece of real estate deeded by the plaintiffs to the company and mutually estimated by the parties as worth that sum, $15,000 being represented by a certain piece then on the premises, and the balance in certain monthly and quarterly payments. To insure the payment of the first $10,000 of the purchase price not covered by the transfer of the real estate or the assumption of the mortgage, plaintiffs executed in favor of the company a mortgage on their equity in certain property in the North Kenilworth addition to Phoenix. The agreement is very full in detail, but the dispute arises only over the meaning of certain portions thereof which we quote as follows:
This agreement was deposited by the plaintiffs and the company with defendant herein as an escrow-holder for hire. It was accompanied by a warranty deed from the company to plaintiff, which was to be delivered when all the payments provided for by the agreement had been made. Since the agreement of sale was to be recorded and plaintiffs were to take immediate possession of the premises thereunder, the latter executed a quitclaim deed to the premises in favor of the company and placed it also with defendant in escrow under the following instructions:
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