Rouse v. Bolen

• Decision Date: 20 April 1915
• Docket Number: Civil 1407
• Citation: 147 P. 736,17 Ariz. 14
• Parties: OWEN T. ROUSE, Appellant, v. CATHERINE BOLEN and FREDERICK C. BOLEN, Appellees
• Court: Arizona Supreme Court

147 P. 736

17 Ariz. 14

OWEN T. ROUSE, Appellant, v. CATHERINE BOLEN and FREDERICK C. BOLEN, Appellees

Civil No. 1407

Supreme Court of Arizona

April 20, 1915

APPEAL from a judgment of the Superior Court of the County of Pima. W. A. O'Connor, Judge. Affirmed.

Mr Owen T. Rouse, for Appellant.

Mr Earl S. Curtis (Mr. Charles B. Ward, of Counsel), for Appellees.

OPINION

ROSS C. J.

This is an action to cancel a note and mortgage made and delivered by appellee to the appellant on June 26, 1912, for $1,000, bearing 8 per cent interest, and payable on or before three years after date. It would serve no useful purpose to set forth the entire pleadings, and we will therefore give only enough of them to suggest the material points raised on appeal. The complaint alleges that the note and mortgage security were given for future advances to be made by appellant for the use and benefit of appellees, and that the consideration had failed in that no advances had been made; that demand had been made for their cancellation and appellant's refusal, his threat to sue on note, and for foreclosure of mortgage; that mortgage had been recorded and constituted a cloud upon the title of the appellees' premises, to wit, lots 8 and 9 in block 92 of the city of Tucson, county of Pima, state of Arizona.

Appellant interposed to the complaint: (1) A general demurrer. (2) Answered that there was a nonjoinder of parties plaintiff because others than plaintiffs owned an interest in the mortgaged premises. (3) That the note was given for value and not alone for moneys thereafter to be advanced; that at the time of its execution he was appellees' attorney, and that appellees were indebted to him in a sum largely in excess of the amount of note, and that the note was given to him for a part of his fee; that since the date of note he had paid out court costs for appellees "in the aggregate about $465." (4) Appellant cross-complained and set forth a cause of action, not against appellees, but against appellees and several others, strangers to the record, alleging that appellees and others had employed him as their attorney, to be compensated only on condition of a recovery, and that he had rendered services in his employment and paid out costs of the value of $7,090. But there is no allegation of recovery.

The appellees moved to strike the part of the answer setting up nonjoinder of parties plaintiff and the cross-complaint, and replied that appellant's compensation was contingent upon the amount of recovery in certain proposed litigation, and that nothing had been recovered to them. The motion to strike was granted. Thereupon the case was tried to a jury, resulting in a verdict for the appellees, upon which judgment was entered ordering the cancellation of the note and mortgage.

Appellant complains: (1) Of the order overruling his general demurrer; (2) of the order striking his plea of non-joinder; (3) of the order striking his cross-complaint; and (4) of the instructions given and refused. We will consider these points in their order.

The appellant is extremely brief in his argument as to why the complaint failed to state facts sufficient to constitute a cause of action. He says the facts "show that plaintiffs executed and delivered to defendant a negotiable promissory note and a mortgage to secure it. . . . They import a...