Swank v. Young, Civil 4499

• Decision Date: 09 November 1942
• Docket Number: Civil 4499
• Parties: WILLIAM S. SWANK, Appellant, v. KATIE F. YOUNG, Appellee
• Court: Arizona Supreme Court

130 P.2d 918

60 Ariz. 18

WILLIAM S. SWANK, Appellant, v. KATIE F. YOUNG, Appellee

Civil No. 4499

Supreme Court of Arizona

November 9, 1942

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment affirmed.

Mr. E E. Selden and Mr. W. H. Chester, for Appellant.

Messrs Townsend, Jenckes & Wildman, for Appellee.

OPINION

ROSS, J.

This action is one for the possession by the owner of real property, being lot 4, block 13, Churchill Addition to the City of Phoenix. It was filed August 9, 1941. Defendant Lorraine Ramsey was personally served with summons on that day but failed to answer or appear within the time fixed by law and her default was duly entered. Later, on October 8 1941, after hearing the evidence, judgment was rendered against her. The other defendant, William S. Swank, on September 25, 1941, filed an answer, the material part of which reads:

"I. That defendant denies the allegations of the plaintiff's complaint and in that regard, the defendant alleges that he is entitled to the whole of the premises described in the plaintiff's complaint by virtue of the provisions of a certain contract covering the aforesaid property wherein the plaintiff was designated as seller and the defendant was designated as buyer of the property as aforesaid and the defendant further states that he is lawfully entitled to possession of the real property described in the plaintiff's complaint."

Thereafter, on September 26, 1941, plaintiff filed a motion for judgment on the pleadings. On October 6th, both parties being present, an order was made by the court granting such motion.

From the judgment defendant Swank has appealed.

From this statement, it is apparent that the only question for decision is the correctness of the court's ruling on the motion for judgment.

While appellant has assigned nineteen errors, based on the court's rulings, we need notice only one, the others being either a repetition of the one or entirely aside from the material facts of the case. Such assignment reads:

"2. The court erred in granting a Motion for Judgment on the Pleadings when such pleadings set forth in the answer, P. 14, R, a clearly defined issue, namely: right of possession of the premises."

The action is a possessory one under section 25-1501 et seq., Arizona Code 1939, and the question for decision is not who is the owner of the property but who is entitled to its possession. If the cause of action alleged by appellee shows her to be the owner of the premises in fee simple and that the appellant Swank keeps her out of its possession unlawfully, and such allegations are supported by the evidence, or admitted, or not traversed by a proper denial, a motion for judgment would be proper. The only question, then is, Does appellant Swank's answer put in issue the appellee's claim of right of possession? The answer, in effect, is that Swank is entitled to the premises "by virtue of the provisions of a certain contract covering the aforesaid property wherein the plaintiff was designated as seller and the defendant was...