Sandoval v. Randolph

• Decision Date: 27 March 1908
• Docket Number: Civil 1028
• Citation: 11 Ariz. 371,95 P. 119
• Parties: A. SANDOVAL and P. SANDOVAL, Defendants and Appellants, v. EPES RANDOLPH, Plaintiff and Appellee
• Court: Arizona Supreme Court

95 P. 119

11 Ariz. 371

A. SANDOVAL and P. SANDOVAL, Defendants and Appellants, v. EPES RANDOLPH, Plaintiff and Appellee

Civil No. 1028

Supreme Court of Arizona

March 27, 1908

APPEAL from a judgment of the District Court of the Second Judicial District, in and for the County of Santa Cruz. Frederick S Nave, Judge. Affirmed.

The facts are stated in the opinion.

A Orfila, and Eb. Williams, for Appellants.

If the appearance of the defendants by their demurrer and answer be construed to confer jurisdiction upon their persons, it does not confer jurisdiction of the subject matter, especially where the objection is pointed out in their demurrer, and even if they were to consent, jurisdiction would not be conferred; and again, if it appears from the record that the court is without authority to take cognizance of the subject matter of the suit, jurisdiction is not conferred by failure to demur; and if the objection is not raised by the parties it becomes the duty of the court to take notice of the want of jurisdiction of its own motion, and where no jurisdiction of the subject matter exists, the appellate court cannot properly consider any other question raised. 6 Ency. of Pl. & Pr. 374; 8 Ency. of Pl. & Pr. 173; 12 Ency. of Pl. & Pr. 190. When for any cause a court has no jurisdiction of the subject matter of an action, neither an appearance and consent by the parties, nor pleadings to the merits and going to trial will give jurisdiction. 12 Am. & Eng. Ency. of Law, 1st ed., 301 and numerous cases therein cited. Want of jurisdiction either of the person or subject matter appearing on the face of the record can be taken advantage of at any time and in any court, where the conclusiveness of the judgment or decree is the subject of judicial inquiry. Wall v. Wall, 123 Pa. 545, 10 Am. St. Rep. 549, 16 A. 598. The court abused its discretion in denying defendant's application for leave to amend their answer by setting up the statute of limitations. See Rev. Stats. 1901, par. 1288; Bliss on Code Pleading, sec. 430. Courts are more liberal to the defendants in regard to the time when amendments should be made, for the reason that the plaintiff may have a nonsuit, and bring a new action, while the defendant would forever lose the benefit of his defenses, and it was so held for the same reason at common law. Story's Equity Pleading, secs. 897-905. "Statutes of amendments are remedial in character, and are to be construed and applied liberally in favor of the privilege of amending." Perrin v. Mallory Commercial Co., 8 Ariz. 407, 76 P. 476; Consolidated Canal Co. v. Peters, 5 Ariz. 80, 46 P. 74. Section 1288 of the Revised Statutes of Arizona uses the language, "at any stage of the action," which means the same as "on" the trial. And "on" the trial means before the close of it. Franklin Fire Ins. Co. v. Findlay, 6 Whart. 483, 37 Am. Dec. 430.

Eugene S. Ives, S. L. Pattee, and S. V. McClure, for Appellee.

The limitation attempted to be invoked has no application in this case. This action is based upon a violation of a duty which the agents owed to their principal, the gravamen of which is the breach of the contract of agency. An intent to deceive, though unnecessarily alleged, is wholly immaterial. The foundation of the action is the rule of law that an agent may not profit by dealing with the subject matter of the agency, and if he does so, the profit belongs to the principal, regardless of the intent or motive of the agent. Bain v. Brown, 56 N.Y. 285; Crump v. Ingersoll, 44 Minn. 84, 46 N.W. 141; Rorebeck v. Van Eaton, 90 Iowa 82, 57 N.W. 694. This rule is stated and the authorities compiled in 1 American and English Encyclopedia of Law, second edition, 1071-1073. An action for relief on the ground of fraud must be based wholly on fraud, in order that the running of the statute of limitations may date from the discovery of the fraud. The statute has no application to an action based on a violation of a duty imposed by contractual relations, or to a case where the fraud is merely collateral to the cause of action, or where the cause of action is complete without fraud, notwithstanding unnecessary averments of fraud in the complaint. 25 Cyc. 1183; Frishmuth v. Farmers' Loan & Trust Co., 107 F. 169, 46 C.C.A. 222; Seitz v. Seitz, 59 A.D. 150, 69 N.Y.S. 170.

If a defendant be served with process within the territorial jurisdiction of a court of general jurisdiction, which has jurisdiction of causes of action of a transitory character, the power of the court to proceed to adjudication is unquestioned, irrespective of the residence of the parties, except in the few cases, not here involved, where jurisdiction may be declined in the exercise of discretion, and regardless of where the cause of action arose. McKenna v. Fisk, 1 How. (U.S.) 241, 248, 11 L.Ed. 117; East Tennessee etc. R.R. Co. v. Kennedy, 83 Ala. 462, 3 Am. St. Rep. 755, 3 So. 852; Allen v. Caspari, 80 Me. 234, 6 Am. St. Rep. 178, 14 A. 12; 12 Ency. of Pl. & Pr. 137 and notes. And even where both parties are nonresidents and the cause of action arises out of the jurisdiction, the court has jurisdiction if the cause of action is transitory in its nature. And jurisdiction of the person may be acquired by service of process within the territorial jurisdiction of the court. Roberts v. Dunsmuir, 75 Cal. 203, 16 P. 782; Roberts v. Knight, 7 Allen, 449; Cofrode v. Circuit Judge, 79 Mich. 332, 44 N.W. 623, 7 L.R.A. 511; Eingartner v. Illinois Steel Co., 94 Wis. 70, 59 Am. St. Rep. 859, 68 N.W. 664, 34 L.R.A. 503; 12 Ency. of Pl. & Pr. 145. That the right to be sued in any particular county or district is a mere personal privilege of the defendant, which does not go to the jurisdiction of the court over either the subject matter or the person of the defendant, is well settled. Central Trust Co. v. McGeorge, 151 U.S. 129, 14 S.Ct. 286, 38 L.Ed. 98; Southern Express Co. v. Todd, 56 F. 104, 5 C.C.A. 432; Grove v. Grove, 93 F. 865, 870; Masterson v. Cunniff, 58 Tex. 472; Willis v. White (Tex. Cr. App.), 29 S.W. 818; Gulf C. & S.F. Ry. Co. v. Foster (Tex. Cr.), 44 S.W. 198; 22 Ency. of Pl. & Pr. 815. Such objection is not presented by a demurrer on the ground that the court has not jurisdiction of the person of the defendant. Such a demurrer presents only the question whether a defendant is such a person as can be subjected to the jurisdiction of the court, and not whether the suit is brought in the wrong county. Reynolds v. La Crosse etc. Co., 10 Minn. (144) 178; Robinson v. National Stock Yard Co., 12 F. 361, 20 Blatchf. 513; Sanipoli v. Pleasant Valley Coal Co., 31 Utah 114, 86 P. 865; Continental etc. Co. v. Jones, 31 Utah 403, 88 P. 229. The objection that the suit was brought in the wrong district or county, being a mere personal privilege of the defendant, may be waived, and is waived by a general appearance or by answering to the merits. Southern Express Co. v. Todd, 56 F. 106; St. Louis etc. Ry. Co. v. McBride, 141 U.S. 127, 11 S.Ct. 982, 35 L.Ed. 659; Hodge v. Sawyer, 85 Me. 285, 27 A. 153. A demurrer on the ground that the court has no jurisdiction of the person of the defendant is in itself a general appearance. Reynolds v. La Crosse etc. Co., 10 Minn. (144) 178.

OPINION

DOAN, J.

-- An action was brought in the district court of Santa Cruz county by the appellee against the appellants for a sum of money alleged to have been paid by the appellee and his assignor, L. Lindsay, to the appellants, for the purchase of the San Francisco mine, in the state of Sonora, Republic of Mexico, by the appellants as the agents of the appellee and his assignor, Lindsay. From a decision for the plaintiff, the defendants appealed.

The facts found by the trial court, before whom the case was tried without a jury, are as follows: "In or about the spring of 1905 the defendants A. Sandoval and P. Sandoval entered into a certain agreement with the plaintiff and one Lycurgus Lindsay, whereby the defendants agreed that they, on behalf of the said plaintiff and the said Lindsay, would undertake to purchase for them a certain mining claim called the 'San Francisco mine,' in the Altar mining district, in the state of Sonora, Republic of Mexico, at the lowest possible price. Thereafter the said defendants, in pursuance of such agreement, and on behalf of the said Lindsay and this plaintiff, did purchase the said mining claim from the owners thereof for the full consideration of $20,000, Mexican silver, and that the defendant P. Sandoval, as copartner of the defendant, A. Sandoval, did thereupon obtain a deed of the said mining claim from the original owners thereof, and did pay therefor the sum of $20,000, Mexican silver, and no more; and the said defendants did thereupon, and in further pursuance of said agreement, procure the said P. Sandoval to convey the said mining claim to one H. S. MacKay, who was the agent of the plaintiff and of the said Lindsay; and the said Lindsay and the plaintiff in pursuance of said agreement, and in the belief that the defendants had paid for the said mine the said sum of $20,000, American gold, did pay to the defendants the said sum of $20,000, American gold. The plaintiff and the said Lindsay paid the said sum of $20,000 in gold in three separate installments, the last thereof being paid on the twenty-fifth day of May, 1906, in the sum of $12,000, American gold. The said sum of $20,000 Mexican silver paid by the defendants to the original owners of the said mining claim was worth in American gold the sum of $10,000 at the time the said payments were made. The said Lycurgus Lindsay prior to the commencement of this action duly assigned his claim against the defendant arising out of the aforesaid transaction to the plaintiff for a valuable consideration."

The first error...