Podol v. Jacobs, 4837

Decision Date28 October 1946
Docket Number4837
Citation65 Ariz. 50,173 P.2d 758
PartiesPODOL et al. v. JACOBS
CourtArizona Supreme Court

Appeal from Superior Court, Pima County; Wm. G. Hall, Judge.

Affirmed.

Conner & Jones, of Tucson, for appellants.

Knapp Boyle & Thompson, of Tucson, for appellee.

Morgan Judge. Stanford, C. J., and LaPrade, J., concur.

OPINION

Morgan Judge.

Appellants were defendants and appellee was plaintiff in the lower court. The facts, proceedings and issues may be stated briefly as follows:

Pauline Podol leased as her separate property to the plaintiff certain store premises for a term expiring January 4, 1945. The following provision appeared in the lease: "Lessee also has an option for three additional years for the rent of $ 125.00 per month for the first year and $ 135.00 for the additional two years, but must give lessor 90 days written notice before the lease expires of his intention to continue on this option of three years, and to pay the first and last months rent."

On January 4, 1945, the date of the expiration of the original lease, plaintiff brought suit for a "declaration of his rights" under the lease and option for extension and for a performance by the defendants of their obligations. Benjamin Podol, the husband of Pauline, was made a defendant in the action. The suit was obviously brought under or is based on the provisions of Chap. 27, Art. 7, Declaratory Judgments, sec, 27-701 et seq., A.C.A.1939.

The complaint alleged that plaintiff had complied with the option for extension by giving written notice about September 6, 1944, of his intention to renew, followed by tender on December 12, 1944, of his first and last months' rent. He alleged that the tender was refused, and that defendants notified him that he had failed to exercise his option to extend the lease and would require him to vacate on January 4, 1945.

Defendants moved to dismiss on the ground that the only issue involved was possession, the complaint did not state facts justifying a declaratory judgment suit and the allegations of the complaint disclosed that a tender of the first and last months' rent was made too late to be a compliance with the option. This was overruled. Defendants' answer, denying written notice of plaintiff's intention to renew, but admitting tender on December 12, with counterclaim for possession based on Chap. 27, Art. 15, Sec. 27-1501, A.C.A.1939, were filed. Reply was made by plaintiff to the counterclaim.

The case was tried before a jury. Plaintiff submitted proof to the effect that he had mailed the written notice to the defendants at the Valley National Bank Building, where Benjamin Podol maintained an office. Defendants testified that the notice was never received. During the course of the trial, the court sustained plaintiff's objection to questions asked by defendants' counsel of Benjamin Podol at the conclusion of his examination by the plaintiff as an adverse witness. The court also overruled defendants' objection to a question propounded by plaintiff's counsel to the plaintiff relative to an alleged admission by defendant Benjamin Podol to the effect that he had received the written notice of intention to renew. The objection was made upon the ground that his admission, since he was only the agent of the owner Pauline Podol, was not binding on her. The court further overruled defendants' objection to a question asked one of plaintiff's witnesses on rebuttal, the purpose of which was to elicit her intention in fixing a definite date during her testimony given in plaintiff's main case.

Defendants' motions for judgment at the conclusion of plaintiff's case and at the close of the entire case were denied. The issue as to whether defendant Benjamin Podol had received plaintiff's written notice of intention to renew was submitted to the jury, eleven of whom answered that the notice had been received. By agreement of the parties, the question of "agency of Benjamin Podol to receive notice of renewal of lease in behalf of Pauline Podol" was submitted to the court. The evidence as to this will be discussed later.

From judgment entered for plaintiff, and a denial of their motion for a new trial, defendants appeal. Substantially five questions are presented for our consideration, which will be separately stated, discussed and determined.

1. Was it an abuse of discretion for the court to entertain a declaratory judgment suit by the lessee against the lessor for construction of a written option to renew and for specific performance of renewal and which substantially involved the right of possession of the leased premises, filed on termination date of the original lease, if such suit was intended to prevent the lessor from resorting to relief afforded for prompt determination of the issue of possession under the forcible entry and detainer statute, Chap. 27, Art. 12, sec. 27-1201 et seq., A.C.A.1939, and in which summary proceedings, if filed by the landlord, the lessee might have presented as a defense his right of renewal?

There can be no question that plaintiff had a cause of action under the declaratory judgment act. Sec. 27-701, supra, states: "Courts of record may declare rights, status, and other legal relations * * *." In section 27-702, it is provided: "Any person interested under a * * * written contract or other writing, * * * may have determined any question of construction or validity arising under the * * * contract, * * * and obtain a declaration of rights, status or other legal relations thereunder." We have held that an action by a lessee to test the validity of a lease was properly brought under the act. Woodward v. Fox West Coast Theaters, 36 Ariz. 251, 284 P. 350. Such actions are not uncommon. Pulsifer v. Walker, 85 N.H. 434, 159 A. 426, 81 A.L.R. 1052.

The question in a suit under the declaratory judgment act must be real and not merely theoretical. The proponent must have an actual or real interest in the matter for determination, and the opponent must have a real interest in opposing the declaration sought. In other words, there must be an actual controversy. Morton v. Pacific Const. Co., 36 Ariz. 97, 283 P. 281; Kleck v. Wayland, 53 Ariz. 432, 90 P.2d 179; Hammond v. A. J. Bayless Markets, 58 Ariz. 58, 117 P.2d 490. The act is remedial and is to be liberally construed and administered. Taylor v. McSwain, 54 Ariz. 295, 95 P.2d 415; Peterson v. Central Arizona Light & Power Co., 56 Ariz. 231, 107 P.2d 205. The record here discloses that there was an actual existing controversy and disagreement of the parties as to the meaning of the option clause. An examination of the act discloses that it covers a multitude of controversies and is general in its operation. The last paragraph of sec. 27-703 provides: "The enumeration in this and the preceding sections does not limit or restrict the exercise of the general powers conferred, in any action where declaratory relief is sought, in which a judgment will terminate the controversy or remove an uncertainty." While in sec. 27-704, we find "The court may refuse to render a declaratory judgment, where such judgment would not terminate the uncertainty or controversy."

Although there is a division of authority on the subject, we think that generally speaking the rule is, under statutes similar to our declaratory, act, relief under the act may be afforded either solely for the declaration of rights or duties or as additional to other relief sought. 16 Am.Jur. 333, § 64, Declaratory Judgments; Anno. 68 A.L.R. 112; Merchants' Trust Co. v. Hopkins, 103 Cal.App. 473, 284 P. 1072. It also seems to be the rule that consequential or incidental relief, if properly alleged and sought, may be granted in a declaratory judgment proceeding. 87 A.L.R. 1247, 101 A.L.R. 693

Whatever the rule may be elsewhere the scope of proceedings and relief afforded under a declaratory judgment act must be determined by reference to our own statutes on the subject. Sec. 21-1217 of the Code specifically provides that the procedure for obtaining a declaratory judgment shall be in accordance with the rules of procedure in the superior courts. By this section, the right to trial by jury is secured. "The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar." The judgment in this character of action is therefore to be governed by section 21-1219, which by virtue of the provisions of Chap. 8, sec. 3, Laws of 1939, not having been superseded by the adopted rules, is to be deemed a rule of the court. This section reads: "The judgment of the court shall conform to the pleadings, the nature of the case proved, and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity."

Again in section 21-1203, Rule Civ.Proc. 54(c), the provision is made, "Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." See Keystone Copper Min. Co. v. Miller, 63 Ariz. 544, 164 P.2d 603, 611, for the character of relief to be granted in actions governed by the Rules of Civ. Procedure.

From what has been said it will be seen that not only was there an actual controversy in this case but that complete relief could be afforded the parties in the action instituted by plaintiff. The existence of another remedy by the terms of the rule was not a bar to the action, and the court had the right to order a speedy hearing. Under these circumstances we think the court was acting...

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    ...(1948) ("It is proper to ask for and receive injunctive or other relief [in a DRA] where the facts warrant it."); Podol v. Jacobs, 65 Ariz. 50, 55, 173 P.2d 758, 761 (1946) ("It ... seems to be the rule that consequential or incidental relief, if properly alleged and sought, may be granted ......
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