Standard Accident Insurance Co. v. Allen

• Decision Date: 27 April 1931
• Docket Number: Civil 2977
• Citation: 38 Ariz. 173,298 P. 406
• Parties: STANDARD ACCIDENT INSURANCE COMPANY, a Corporation, Appellant, v. W. C. ALLEN, Appellee
• Court: Arizona Supreme Court

298 P. 406

38 Ariz. 173

STANDARD ACCIDENT INSURANCE COMPANY, a Corporation, Appellant, v. W. C. ALLEN, Appellee

Civil No. 2977

Supreme Court of Arizona

April 27, 1931

APPEAL from a judgment of the Superior Court of the County of Maricopa. Albert M. Sames, Judge. Affirmed

Messrs Sloan, Holton, McKesson & Scott, for Appellant.

Mr. J E. Morrison and Mr. Hess Seaman and Mr. Ernest R. Utley, for Appellee.

OPINION

ROSS, J.

This action in replevin is between W. C. Allen, mortgagee, and the Standard Accident Insurance Company, which claims the mortgaged property, under an assignment, as indemnity against liability on a surety bond of the owner, one Le Roy Little. The property involved is a grading outfit consisting of work animals, tools, and other equipment.

In a former opinion, Davis v. Standard Acc. Ins Co., 35 Ariz. 392, 278 P. 384, to which we refer for a statement of the issues made and submitted and the controlling facts, we reached the following conclusion:

"We think appellant Allen under the law and the evidence was entitled to recover the property covered by his mortgage, or to have judgment for its value. As he did not execute a redelivery bond and retake possession, only the issues of value and damages, if any, should have been submitted to the jury. The court should have granted Allen's motion for an instructed verdict on the issue of title.

"The judgment is reversed, and the cause remanded, with directions that a new trial be had to determine the value of the property, and what, if any, damages appellant Allen may have sustained by reason of the taking of his property by appellee; and that judgment be entered in favor of appellant Allen for the value of said property and the damages so ascertained."

The case was tried the second time, as above directed, the jury finding by their verdict that the value of the property was $15,000 and the damages $25,000. Upon such verdict the court entered judgment against the company for $40,000.

The company has appealed, and for reasons of appeal assigns the order of the court sustaining a plea in bar to its first and second amended answers, and the passion and prejudice of the jury, manifested, it is claimed, by the excessiveness of its verdict.

The amended answers stricken, like the original answer upon which the case was first tried, pleaded the issues of estoppel and waiver against the mortgagee Allen, and, in addition, alleged, in substance: That the mortgagor when he gave Allen the mortgage was in failing circumstances and being hard pressed by his creditors; that the consideration named in the mortgage was not actually paid, and that the affidavit of mortgagee of bona fides, as required by the laws of California, was not made; that in the action (referred to in our former opinion) by the mortgagee in Coconino county to foreclose the mortgage, although the indemnity contract between the owner and the company was of record in said county, the company was not made a party; that said action was collusive; that the judgment was by consent, and that the sale of the property under the foreclosure judgment was illegal, in that no notice of sale was given; and that the possession of said property was taken from the company by the sheriff of Coconino county under said collusive proceeding and turned over to Allen's agent, Davis. It is alleged that on April 26th, the date the company wrote Allen concerning Little's title to the property, and on May 2d, the date of Allen's letter to the company, the United States had not executed or accepted the surety bond, and that, if Allen had advised the company of his mortgage on the property, and of the true situation, the company would not have continued the bond; that, when the bond was executed Little was insolvent and Allen knew it; that these facts concerning the validity of the mortgage, the collusive suit, and Little's insolvency were unknown to it at the first trial.

The issues tendered by these amended answers were met by a motion to strike on the ground that they were sham, irrelevant, frivolous, and redundant in that the only issues to be tried were the value of the property and damages for its detention, and that the issues therein tendered had been theretofore adjudicated and fully determined by this court.

It is contended that the amended answers should have been permitted to stand because they presented questions that had not been adjudicated; that such questions were properly raised in the amended answers, were proper and legitimate defenses, and their denial deprived the company of a substantial and vital right. This broad claim of right to amend is based on section 3740 of the Revised Code of 1928, reading:

"All pleadings may upon leave of the court be amended at any time, upon such terms as the court may prescribe, or the same may be amended without such leave, not less than five days before trial, by serving the adverse party with a copy of such amended pleading."

Because the first amended answer was filed more than five days before the trial, it is insisted the right to amend was absolute. We think, however, the right to amend the pleadings depends upon the status of the case at the time the amendment is offered. If, for instance, in the present case the order had been one of reversal and remand for a new trial generally, the right to file an amended answer five days before the trial, raising issues not raised or involved in the previous trial, would be absolute, and at a later date at the discretion of the court. Here the order or judgment was not one for a new trial generally, but of two issues only, value and damages.

Right or wrong, the mandate of this court was the measure of power in the trial court. This seems to be the universal rule. It is well stated in Mountain Home Lumber...