Southwest Mines Development Co. v. Martignene

• Court: Arizona Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Southwest Mines Development Co. v. Martignene, 49 Ariz. 88, 64 P.2d 1031 (Ariz. 1937)
• Decision Date: 01 February 1937
• Docket Number: Civil 3760
• Parties: SOUTHWEST MINES DEVELOPMENT COMPANY, a Corporation, Appellant, v. JOE MARTIGNENE, Appellee

64 P.2d 1031

49 Ariz. 88

SOUTHWEST MINES DEVELOPMENT COMPANY, a Corporation, Appellant, v. JOE MARTIGNENE, Appellee

Civil No. 3760

Supreme Court of Arizona

February 1, 1937

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Mr. J E. Russell and Mr. Leo T. Stack, for Appellant.

Messrs O'Sullivan & Morgan and Mr. E. C. Locklear, for Appellee.

OPINION

PER CURIAM.

The plaintiff, Joe Martignene, recovered judgment against the defendant, Southwest Mines Development Company, for wages as a miner and for money loaned, and defendant has appealed.

The only papers certified to this court, as appears from the abstract of record, are the complaint, answer, judgment motion for new trial, notice of appeal, and supersedeas bond on appeal. The case was tried to the court with a jury, but there is not in the record "either a statement of facts, a bill of exceptions, or a transcript of the court reporter's notes" as provided by law. Section 3863, Rev. Code 1928. So we have no idea what the evidence was at the trial or what the instructions to the jury were.

The only questions raised and properly before the court involve the sufficiency of the complaint and the matter of interest. It is alleged in the complaint that plaintiff worked and labored for defendant under a contract wherein it was agreed that he would accept, and defendant would pay him for such services, $100 in cash, $100 in the defendant's stock (at 25 cents per share) per month and board and lodging; that during 1933 the parties agreed the plaintiff should be paid from the beginning $200 cash per month and board and lodging, instead of $100 cash and $100 in stock and board and lodging; that plaintiff worked and labored for defendant under such contract, and under such contract as modified, from July 1, 1930, to April 1, 1934, the defendant furnishing him a room and giving him money from time to time for his board; that plaintiff's wages for such period of forty-five months were $9,000, no part of which had been paid.

In a separate paragraph plaintiff alleged that he had loaned defendant $530, in the sums and at the times following, to be repaid on demand:

On or about August 1, 1930

$ 70.00

On or about July 1, 1931

250.00

On or about July 31, 1931

100.00

On or about January 1, 1933

110.00

The prayer is for $9,530 principal and accrued interest at 6 per cent. to October 1, 1934, or $1,350.45.

Defendant's answer was (1) a demurrer raising the three-year statute of limitations as to "a large portion" of plaintiff's claim and challenging the sufficiency of the complaint "in that there is a commingling of two separate and distinct contracts"; (2) a general denial and (3) a plea of payment.

As before stated, the case was tried to a jury and the jury found in favor of plaintiff in the sum of $4,530 principal. The judgment was for this sum and $400.11 interest. Plaintiff's counsel say in their brief it was stipulated that the court should calculate the interest and this statement is not questioned by defendant. Only one entry of the court's minutes is included in the abstract and it does not concern a stipulation, but concerns the motion for new trial and an order that plaintiff's cost bond be refunded to him. The defendant's motion for a new trial does not mention as a ground therefor the method or way in which the interest was calculated, although defendant's counsel had been served with copy of the judgment containing the item of interest.

The reasons assigned for asking a reversal of the judgment are (1) The overruling of the demurrer, since "a part of the plaintiff's demand, as appears from the face of the complaint, was barred by the statute of limitations"; (2) the overruling of defendant's motion for new trial, it appearing "that a portion of the issues... embraced items which were barred by the statute of limitations," and it cannot be known from the verdict whether such items were rejected by the jury; (3) raises the same question as (2); and (4) the inclusion of interest in judgment, there being no ascertainable basis in the verdict for a...