Smith v. King of Arizona Min. & Mill. Co.

• Decision Date: 30 March 1905
• Docket Number: Civil 866
• Citation: 9 Ariz. 228,80 P. 357
• Parties: BEAUCHAMP H. SMITH, Plaintiff and Plaintiff in Error, v. THE KING OF ARIZONA MINING AND MILLING COMPANY et al., Defendants and Defendants in Error
• Court: Arizona Supreme Court

80 P. 357

9 Ariz. 228

BEAUCHAMP H. SMITH, Plaintiff and Plaintiff in Error, v. THE KING OF ARIZONA MINING AND MILLING COMPANY et al., Defendants and Defendants in Error

Civil No. 866

Supreme Court of Arizona

March 30, 1905

ERROR to the District Court of the First Judicial District in and for the County of Pima. George R. Davis, Judge. Affirmed.

On appeal to the United States Supreme Court.

The facts are stated in the opinion.

J. F Conroy, for Plaintiff in Error.

E. S Ives, for Defendants in Error.

OPINION

SLOAN, J.

-- The plaintiff in error brought suit in the district court of Maricopa County against the King of Arizona Mining and Milling Company, Hiram W. Blaisdell, Eugene S. Ives, Epes Randolph, John H. Morton, and S. Morgan Smith, to reform and enforce a certain contract made February 21, 1899, and to annul as fraudulent a certain writing dated August 30, 1900 executed by the defendant S. Morgan Smith in favor of the King of Arizona Mining and Milling Company. All the defendants appeared and answered to the complaint. In the answer of the defendant Blaisdell appeared a pleading which began in the following words: "This defendant, for a further and separate answer to the said amended complaint, and by way of cross-complaint against the plaintiff and the defendant S. Morgan Smith, alleges and avers." Then followed certain averments to the effect that three certain promissory notes had been executed by the defendant Blaisdell, one drawn to the order of Gregory Perkins, Jr., and the other two drawn to the order of the defendant S. Morgan Smith; that at the time of the execution of the agreement of August 30, 1900, referred to in the plaintiff's complaint, these notes were in the possession and under the control of said defendant S. Morgan Smith, and that under and by virtue of said agreement said S. Morgan Smith had agreed to deliver up the said notes to the King of Arizona Mining and Milling Company to be canceled; that said agreement was made for a valuable consideration passing to Smith from Blaisdell, and was made for the benefit of Blaisdell; that the plaintiff, Beauchamp H. Smith, had wrongfully and unlawfully procured possession of said notes under a claim of ownership, and under a claim that the defendant S. Morgan Smith had no authority to agree to deliver up the same to the King of Arizona Mining and Milling Company. The pleading contained the prayer that the said notes be declared paid, and that plaintiff be required to deliver up the same for cancellation. The defendant the King of Arizona Mining and Milling Company filed a similar pleading. To these pleadings the plaintiff in the action filed demurrers. These demurrers were subsequently withdrawn, and answers filed denying the facts therein set forth. The case was subsequently, on change of venue, transferred to the district court of Pima County, and in the latter court, on the twenty-fifth day of March, 1903, came on for trial. Upon the trial evidence was introduced by plaintiff to sustain the issues raised by him in his complaint. The defendants Blaisdell and the King of Arizona Mining and Milling Company introduced evidence to sustain their claim for affirmative relief set forth in their answers, and, after they had rested, the plaintiff, in rebuttal, introduced certain evidence and rested his case. After the evidence had been closed, by agreement of the parties, the case was continued until April 17, 1903, for argument, on which day the attorney for plaintiff appeared and suggested the death of the defendant S. Morgan Smith, and upon his motion the court ordered that further proceedings be postponed until Monday, the eighteenth day of May, 1903. On the latter date, by order of the court, one S.W. Purcell, as special administrator of the estate of S. Morgan Smith, was substituted as a party defendant in place of S. Morgan Smith, deceased. On the same day the plaintiff, by his attorney, filed a motion for a change of venue, supported by an affidavit which alleged that he could not have a fair trial because "of the bias or prejudice or interest of said judge." The motion for the change of venue was denied by the court. Thereupon the plaintiff moved for an order allowing him to take a voluntary nonsuit as to the cause of action set up in the complaint. The nonsuit was allowed but the court ordered that the hearing proceed upon the cause of action stated in the cross-complaint filed by the defendants the King of Arizona Mining and Milling Company and Hiram W. Blaisdell, and upon the latter rendered judgment in favor of said defendants and against the plaintiff. The judgment contained the order that it be entered nunc pro tunc as of the third day of April, 1903.

It is contended by plaintiff in error that the judgment so rendered was void for want of jurisdiction, -- 1. Because the affidavit for change of venue disqualified the judge of the court below from further hearing the cause; 2. Because the court lost jurisdiction to enter judgment after the nonsuit of plaintiff had been entered of record; and 3. Because the cross-complaint of the defendant Blaisdell did not state a cause of action.

The assignment of error as to the court's ruling denying the change of venue is disposed of by...