Sanford v. Ainsa

• Decision Date: 25 March 1911
• Docket Number: Civil 1171
• Citation: 13 Ariz. 287,114 P. 560
• Parties: ETTA L. SANFORD, AMOS McKEE, FRED McKEE, Her Husband, HARRY B. RIGGS, DON A. SANFORD, Jr., MANUEL ESTRADA and ESTANISLADO BRAVO, Defendants and Appellants, v. SANTIAGO AINSA, Administrator With Will Annexed of the Estate of FRANK ELY, Deceased, Plaintiff and Appellee
• Court: Arizona Supreme Court

114 P. 560

13 Ariz. 287

ETTA L. SANFORD, AMOS McKEE, FRED McKEE, Her Husband, HARRY B. RIGGS, DON A. SANFORD, Jr., MANUEL ESTRADA and ESTANISLADO BRAVO, Defendants and Appellants, v. SANTIAGO AINSA, Administrator With Will Annexed of the Estate of FRANK ELY, Deceased, Plaintiff and Appellee

Civil No. 1171

Supreme Court of Arizona

March 25, 1911

APPEAL from a judgment of the District Court of the Second Judicial District, in and for Santa Cruz County. Fletcher M. Doan Judge. Affirmed.

The facts are stated in the opinion.

Owen T Rouse, for Appellants.

Selim M. Franklin, for Appellee.

OPINION

LEWIS, J.

The action here involved is one in ejectment brought by Santiago Ainsa, administrator with the will annexed of the estate of Frank Ely, deceased, the appellee, against the appellants, to recover possession of certain lands in Santa Cruz county known as the San Jose de Sonoita grant, and for the rents issues and profits thereof. Judgment was entered in favor of the appellee and against the appellants, except Don A Sanford, Jr., as to whom the action was dismissed, for possession, and as against the appellants Etta L. Sanford and Emil S. McKee for $1,600 damages, and costs. From the order denying a motion for new trial, this appeal is prosecuted.

The appellants assign as error the overruling of their motion to strike from the complaint paragraph 3 thereof. The allegations of this paragraph are, in substance, that on the twenty-fourth day of June, 1887, one Frank Ely, appellee's testator, filed his complaint in the district court of the first judicial district of the territory of Arizona, in and for Pima county, against one Don Sanford and others, praying that his title to the lands involved in the present action be quieted; that on said day he duly filed notice of lis pendens; that the said Sanford appeared and answered; that upon the twenty-eighth day of September, 1907, judgment was rendered in favor of the appellee, theretofore substituted as plaintiff, quieting said title in said appellee as against said Sanford; that the defendants and each of them are asserting and claiming rights to the said premises and to the possession thereof under the said Sanford. This is the pleading of an estoppel by record. It is proper matter to be pleaded.

But the appellants urge that the motion should have been granted for the reason that the complaint on its face disclosed that the district court of Pima county had no jurisdiction to render the judgment pleaded, for the reason that section 10 of Act No. 44 of the Session Laws of the 20th Legislative Assembly, 1899, creating out of the county of Pima the county of Santa Cruz, and providing for a transfer of actions to the district court in and for the county of Santa Cruz, divested the said court of Pima county of jurisdiction.

Section 10 provides: "All actions of whatever kind or nature now pending in the district . . . court of Pima county, where the subject matter or property in controversy in said action is situated within the limits of the new county of Santa Cruz, shall be transferred to the proper courts of said county of Santa Cruz for trial, . . . and it is hereby made the duty of the respective clerks . . . of the county of Pima, . . . to transmit to the clerks of the corresponding courts in said county of Santa Cruz, all papers and files in said action, . . . where the title to real estate is not involved, and in all actions pending in said courts in said county of Pima, wherein one of the parties is a resident of said county of Santa Cruz, both parties consenting thereto. . . . It . . . is hereby made the duty of the clerks of the said respective courts . . . to transmit to the clerk of the proper court of Santa Cruz county, all papers and pleadings in said action: . . . Provided, however, that in all civil actions it shall not be the duty of such clerk to make such copy or transmit such papers until his fees and compensation allowed therefor by this act, shall have been paid or tendered him, nor until all costs due such clerk and the sheriff of said county of Pima, up to the time of the transfer, have been duly paid by the parties thereto or by one of them. In all actions transferred under the provisions of this act, upon the receipt by the clerk of the proper court of Santa Cruz county of such papers and pleadings and such certified copies of the...