Silva v. De Mund, 6095

• Decision Date: 10 July 1956
• Docket Number: No. 6095,6095
• Citation: 81 Ariz. 47,299 P.2d 638
• Parties: A. J. SILVA and Jane Doe Silva, his wife, Appellants, v. Herman E. DE MUND, d/b/a Arizona Credit Company; Wayne Bateman and Jane Doe Bateman, his wife; and Ernest Ralls and Jane Doe Ralls, his wife, Appellees.
• Court: Arizona Supreme Court

Page 638

299 P.2d 638

81 Ariz. 47

A. J. SILVA and Jane Doe Silva, his wife, Appellants, v. Herman E. DE MUND, d/b/a Arizona Credit Company; Wayne Bateman and Jane Doe Bateman, his wife; and Ernest Ralls and Jane Doe Ralls, his wife, Appellees.

No. 6095.

Supreme Court of Arizona.

July 10, 1956.

David O. Brown, Mesa, for appellants.

Jerman & Jerman and Charles E. Butler, Phoenix, for appellee Herman E. DeMund.

McKesson & Renaud and J. Gordon Cook, Phoenix, for appellees Wayne Bateman and Jane Doe Bateman and Ernest Ralls and Jane Doe Ralls.

WINDES, Justice.

Appellee Herman E. DeMund, doing business as Arizona Credit Company, filed complaint against Wayne's Motor Sales, a partnership, Wayne Bateman and Jane Doe Bateman, his wife, A. J. Silva and Jane Doe Silva, his wife; and Ernest Ralls and Jane Doe Ralls, his wife, claiming that defendants owed plaintiff $2,781.71 as the balance due from defendants upon certain conditional sales contracts which they had assigned to the plaintiff and upon a trust receipt agreement executed in favor of plaintiff. The complaint prayed for this amount together with interest at eight percent per annum from the respective dates that each amount became due under the respective contracts. Defendants Bateman filed a cross-claim against defendants Silva for any amount that plaintiff might recover against the Batemans. The parties will hereinafter be identified either as plaintiff or defendants or by their respective names.

Two contracts were assigned to the plaintiff when Ralls and Beteman were partners operating as Wayne's Motor Sales. This partnership was orally dissolved on October 25, 1952, and on December 21, 1952, formal written agreement of dissolution was signed dissolving the partnership as of the former date. After the dissolution Bateman continued the operation of the business under the same name of Wayne's Motor Sales and on October 26, 1952, he assigned one of the contracts and on December 19, 1952 he assigned another contract. On January 13, 1953, Silva and Bateman formed a partnership and continued the operation under the name of Wayne's Motor Sales. A trust receipt covering a Ford pickup truck was executed by defendant Silva on January 16, 1953. Upon formation of the partnership between Bateman and Silva they entered into a flooring contract with plaintiff whereby Bateman and Silva in effect guaranteed the payment of the amounts due on contracts assigned to the plaintiff. By the terms of this agreement, plaintiff was to create a reserve account of a certain percentage of the amount borrowed which reserve account was to be placed to the credit of Wayne's Motor Sales. The five motor vehicles covered by the contracts and trust receipt were repossessed and sold by the plaintiff and this suit is to recover dificiencies.

The case was tried without a jury in November, 1954, before the Honorable Robert E. Yount. On December 3s, 1954, he rendered a purported judgment for the plaintiff and against defendants and in favor of cross-complainants Bateman and Ralls against defendants Silva, the details of which are hereinafter set forth. Judge Yount's term of office expired the first Monday in January, 1955, and he was succeeded by the Honorable Warren McCarthy. After Judge McCarthy assumed office, the defendants Silva moved that the purported judgment of Judge Yount be vacated and for entry of a valid judgment 'in accordance with the rules and statutes pertaining thereto'. This motion was granted and Judge McCarthy ordered the entry of judgment hereinafter set forth. Defendants Silva appeal from this judgment and from order denying new trial.

Appellants' first complaint is that it was an abuse of discretion for Judge McCarthy to render judgment against them without hearing the evidence. The solution of this question is dependent upon the conditions under which the judge who succeeds in office the judge who tried the case may render a valid judgment without a trial de novo. The rule applicable to the problem reads:

'If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.' Section 21-1510, A.C.A.1939, Rule 63, Rules Civ.Proc.1956.

The 'other disability' referred to in the rule includes retirement from office. 7 Moore's Federal Practice, par. 63.03, page 1453. Section 21-1510, supra, is in the exact language of Federal Rule 63, 28 U.S.C.A., which latter rule has been construed many times. Under federal practice if a judge who tries the case files any writing which could be construed as findings of fact and conclusions of law which would support a valid judgment, his successor may render judgment thereon. The Del-Mar-Va, D.C., 56 F.Supp. 743; Giffin v. Vought, 2 Cir., 175 F.2d 186. The trial judge under the federal rules in cases without a jury is required to find the facts specially and expressly state his conclusions of law. Rule 52(a), Federal Rules of Civil Procedure. In our state courts the trial judge is not required to specially find facts or state expressly his conclusions of law unless request is made therefor. Rule 52(a), Rules of Civil Procedure. When no request is made for such findings or conclusions, this court must assume the trial court found every controverted issue of fact necessary to sustain the judgment and, if there is reasonable evidence to support such findings, hold that it did so correctly. Sargent v. Sarival Storage Co., 28 Ariz. 152, 236 P. 468; Mead v. Hummel, 58 Ariz. 462, 121 P.2d 423.

The complaint prayed for an aggregate of $2,781.71 together with eight percent interest from the respective dates of the contracts and trust receipt on the respective amounts due on each. At the trial it was stipulated by all parties that the amounts prayed for were correct, except to the extent they were offset by the reserve account in possession of plaintiff and that the court was to try only the issue of who owed the same. The undisputed evidence is that the reserve is $128.80. At a pre-trial conference the defendants Silva admitted liability for the amount due on the Ford pickup truck in the sum of $324.98.

On December 16, 1954, Judge Yount entered the following minute order:

'If is Ordered that upon presentation of a formal written judgment, its approval and signing by the Judge, and the filing thereof with the Clerk of the Court, judgment will be rendered in favor of the Plaintiff and against the Defendants, and each of them.'

On December 31st, he entered the following minute order:

'It is Ordered that the order for judgment made on December 16, 1954 in this cause be, and the same is hereby vacated, and the following order made in lieu thereof.

'It is Ordered for judgment for Plaintiff and against Defendants and for Counter$-Claimant and against the Counter-Defendant, all in accordance with the formal written judgment and decree herewith presented.

'Formal written judgment and decree signed, settled and approved.'

The written judgment signed on the same day as the last-mentioned minute order recites that the court found the issues in favor of plaintiff and against defendants and each of them and that plaintiff was entitled to recover from defendants $2,781.71 principal and $397.54 interest and ordered, adjudged and decreed that plaintiff recover $3,179.25 (the aggregate of principal and interest). This purported judgment likewise gave judgment in favor of defendants Bateman and Ralls and against defendants Silva on the cross-claim for a like amount. No disposition was made of the reserve in the sum of $128.80.

On the motion of the Silvas to enter a valid judgment Judge McCarthy vacated the...