State v. Barnum
| Decision Date | 17 November 1941 |
| Docket Number | Civil 4295 |
| Citation | 58 Ariz. 221,118 P.2d 1097 |
| Parties | THE STATE OF ARIZONA, Appellant, v. JOE E. BARNUM, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed and cause remanded with directions.
Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for Appellant.
Mr George M. Sterling and Messrs. Cox & Cox, for Appellee.
Joe E Barnum, in his own right and as the assignee of numerous other employees of the state hospital for the insane, brought this action against the state for his and their services as such employees. In each case it is alleged in the complaint that the employee during the period of his employment was paid his wages at a rate less than the minimum wage law provided, and judgment is asked for the difference between what each of such employees received from the state and what he would have received had he been paid the minimum wage. There are 116 of such claims, including the plaintiff's.
The complaint was filed January 13, 1939, and it set forth that Dr. Lewis J. Saxe was the superintendent of the state hospital; that J. M. Sparks was the secretary of the board of directors of state institutions and that Ana Frohmiller was the state auditor, and in addition alleged:
The attorney general, on behalf of the state, on February 4, 1939, filed a general demurrer to the complaint and each of the causes of action set out therein, on the ground that the facts stated failed to constitute a cause or causes of action or facts entitling the plaintiff to the relief prayed for, or any relief.
The demurrer was overruled on February 13, 1939, and the defendant elected to stand thereon and on that day the plaintiff introduced his evidence to support his complaint, and judgment was entered in his favor. This order, however, was set aside on March 6, 1939, on motion of defendant, who was granted twenty days to file an answer.
Defendant also denied that it owed plaintiff or his assignees any sum whatever.
On March 27, 1940, it appears plaintiff again introduced evidence, oral and documentary, in support of the complaint, and defendant caused Dr. Saxe to be sworn in to testify in its behalf, after which both parties rested. At this time the defendant moved for judgment. The court took the case under advisement until March 28, 1940, and on said date gave judgment to plaintiff on all the causes of action, except the 97th, or for the sum of $52,144.20 with interest at 6% from January 12, 1939, and for costs.
The state has appealed and assigns as error the failure of the court to grant defendant's motion for judgment at the end of the case, for the reasons that the pleadings and the oral and documentary evidence adduced conclusively show that the claims were not approved by the head official of the department under which the obligations are alleged to have been incurred before they were presented to the state auditor for her approval or disapproval.
We must test this specification of error by the pleadings and by plaintiff's "Exhibit K" in evidence, which is an itemized statement of each of the claims sued on, by the minutes of the clerk of the court and by the admissions of the parties, since, while there were several witnesses who testified, a transcript of their testimony is not in the files or a part of the record.
It has often been stated by this court that it will not disturb a judgment arrived at on evidence which is not in the record on appeal. We have also stated, less frequently it is true, that, when issues not within the pleadings have been made and tried between the parties, we will permit the pleadings to be amended to cover such issues, or we will treat the case as though such amendment had been made. The new rules of procedure (section 21-449, Arizona Code 1939) provide for such contingencies so that there can now be no question as to the correctness of such rules.
It is upon these two rules that plaintiff relies and insists that the judgment should be upheld. As applied to questions of fact, the two rules mentioned may be conceded to be just and in the interests of orderly and expeditious termination of litigation, but when the issue made by the pleadings is one of law purely, as, for instance, where the sufficiency of the facts stated in the complaint to constitute a cause of action is challenged by general demurrer, can it be assumed that the evidence on the trial supplied the defects of the complaint? In such case the defect is one of law and not of fact. We have always understood the law to be that, if a complaint fails to state a cause of action, the court may on its own motion, and must if demurred to by the adversary, pronounce judgment on its sufficiency and refuse to hear the plaintiff further except to allow him to amend, if he can or so desires. In other words, the pleader must show he has a cause of action or the court will not proceed with the trial. If the court notwithstanding overrules the demurrer, we do not on appeal look into the evidence to see if the plaintiff has made out a case, nor do we, contrary to his theory of the case as set out in his complaint, assume in the absence of the evidence that he supplied the defects of the complaint by proof. However, defendant does not specify the overruling of the demurrer as error and we only mention such order to call attention to the question involved as being one of law and not of fact, one that neither of the rules relied on reaches.
The motion for judgment at the close of the case was oral and entered in the minutes by the clerk of the court. It merely "moves for judgment" and we will have to look for defendant's different reasons urged before the trial and at the trial to find out the grounds of the motion as made at the close of the case. We have already discussed the contentions on the general demurrer. In the answer filed by defendant on March 19, 1940, it specifically states that the court is without jurisdiction, assigning as reasons therefor that the claim had never been presented as required by the statute, so we may reasonably and inevitably conclude that defendant, in addition to claiming it owed plaintiff nothing, insisted that if it did plaintiff had not complied with the law in presenting the claims and therefore the court was without jurisdiction to hear and determine the matter.
There can be no question but that the complaint is defective, so much so that it fails to state a cause of action entitling the plaintiff to recover. The law requires an employee of the state hospital for the insane to present his claim to the official head of that institution for his approval and, if he approves it, to present it to the state auditor for allowance. If the head official disapproves it, we have suggested in State v. Angle, 56 Ariz. 46, 104 P.2d 172, decided July 12, 1940, that the claimant's remedy is to mandamus the official head to approve the same. In such case we have stated that is the only method by which a claimant can procure a judgment as to the validity of his claim. There are two other cases construing section 28, Revised Code of 1928, and section 2619 thereof (sections 4-302 and 10-206, Arizona Code 1939) to the same effect. Hutchins v. Frohmiller, 55 Ariz. 522, 103 P.2d 956, decided July 1, 1940; Best v. State, 56 Ariz. 408, 108 P.2d 560, decided December 23, 1940. It is alleged in the complaint that Dr. Saxe, official head of the state hospital for the insane, refused to approve the claims. On the theory, we suppose, that J. M. Sparks, secretary of the board of directors of state institutions, might be regarded as the official head of the hospital, the claims were presented to him, and, according to the complaint, he refused to approve them.
In the Angle case, supra, the facts were exactly parallel with the facts here. In that case we cited section 18, part 2, article IV of the Constitution, which provides:
"The legislature shall direct by law in what manner and in what courts suits may be brought against the state."
We then set out the statutory provisions that have been enacted regulating the...
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Lee v. State
...directs the manner in which a claimant may bring suit against the state. Ariz. Const. art. 4, pt. 2, § 18; see State v. Barnum, 58 Ariz. 221, 231, 118 P.2d 1097, 1101 (1941) (stating that the state is immune from suit "except upon its own terms and conditions"). In A.R.S. § 12-821.01, the l......
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