Reid v. Van Winkle

• Decision Date: 10 January 1927
• Docket Number: Civil 2550
• Citation: 31 Ariz. 267,252 P. 189
• Parties: ABE L. REID, Appellant, v. ELLA VAN WINKLE, Appellee
• Court: Arizona Supreme Court

252 P. 189

31 Ariz. 267

ABE L. REID, Appellant, v. ELLA VAN WINKLE, Appellee

Civil No. 2550

Supreme Court of Arizona

January 10, 1927

APPEAL from a judgment of the Superior Court of the County of Graham. Frank B. Laine, Judge. Affirmed.

Mr. E L. Spriggs, for Appellant.

Mr George H. Rawlins, for Appellee.

OPINION

McALISTER, J.

This is an action by Ella Van Winkle against Abe L. Reid and the Copper Cities Bank, in which she prays for an order directing the latter to deliver to her a bill of sale to certain cattle and a mining deed conveying a one-half interest in certain mining claims, both of which were held by said bank in escrow, and for judgment against Reid for $200 in damages for instructing the bank not to deliver her said bill of sale and deed. She prevailed in the trial court, and the defendant Reid, appeals from the judgment and order overruling his motion for a new trial.

It appears that appellant, Abe L. Reid, and appellee, Mrs. Van Winkle, entered into a contract on February 28, 1925, in which the former agreed to sell the latter, for a consideration of $1,500, seventy-five head of cattle, more or less, together with a one-half interest in five unpatented lode mining claims situated in Graham county, Arizona, and that a bill of sale to said cattle and a deed conveying said mining interest were drawn up and deposited in escrow with the Copper Cities Bank with instructions to deliver them to appellee herein, provided she placed to the credit of appellant in said bank $800 on or before June 1 1925, but in case she failed to do this to deliver them to appellant. The agreement acknowledges payment of $700 upon its execution, and appellee alleges that within the proper time she tendered $800 to the bank, but, acting upon the instructions of appellant, it refused to accept this money and deliver her the papers, and that in consequence of such refusal she was damaged in the sum of $200. The agreement provides that if the cattle delivered exceeds seventy-five appellee shall pay $15 a head over and above $800, but if they fall below this number the same amount a head shall be deducted from this sum, and the contentions of the respective parties as to how many cattle were delivered is the main reason for the action. The judgment was that appellee have $100 as damages for breaching the contract, and that upon the payment by her to the appellant of $515, the balance due on the contract, less said $100, the defendant, Copper Cities Bank, deliver the bill of sale and mining deed to appellee in accordance with the terms of the agreement.

As grounds for a reversal of the judgment appellant makes the following assignments of error:

"Assignment of error No. 1: The court erred in overruling defendant's demurrer. Assignment of Error No. 2: The court erred in denying defendant's motion for a new trial. Assignment of error No. 3: The judgment rendered in this case does not conform to, and is not supported by, the pleadings nor the evidence. Assignment of error No. 4: The judgment is inconsistent and finds both for the plaintiff and the defendant."

Relative to the first assignment it is sufficient to say that the abstract of record does not disclose any ruling upon which this court can pass. The demurrer was neither overruled nor sustained, hence there was no action by the court within the purview of paragraph 1231 of the Civil Code of 1913, which makes it the duty of this court to review orders and rulings made by the court below. Southwest Hay & Grain Co. v. Young, 21 Ariz. 405, 189 P. 244. A demurrer is not unlike a motion for judgment in this respect, and in Atlantic National Bank of Boston v. Korrick et al., 29 Ariz. 468, 43 A.L.R. 1184, 242 P. 1009, this court used the following language concerning the latter:

"Error is assigned upon the court's refusal to grant such motion. The record fails to show that the court ever passed upon the motion either refusing or granting the same, and for that reason there is no basis for such assignment."

The failure to...