Weltsch v. O'Brien

Decision Date18 December 1975
Docket NumberNo. 1,CA-CIV,1
Citation25 Ariz.App. 551,545 P.2d 62
PartiesJulian F. WELTSCH, Appellant, v. Alan T. O'BRIEN and Barbara O'Brien, Appellees. 2667.
CourtArizona Court of Appeals

Joseph B. Miller, Renaud, Cook, Miller & Cordova, P.A., Phoenix, for appellant.

Stuart Herzog, Tucson, for appellees.


JACOBSON, Presiding Judge.

The Court, consisting of Presiding Judge Eino M. Jacobson and Judges William E. Eubank and Levi Ray Haire, considered appellees' motion for rehearing and appellant's objection thereto. The motion for rehearing correctly points out that issues raised by the pleadings, that is, the falsity of the affidavit of garnishment and the constitutionality of post judgment garnishment statutes, were not litigated in the trial court nor determined on appeal. The fact that issues remain to be litigated is contrary to our directions for reversal and entering of judgment for the appellants. Therefore,

It is ordered that the last paragraph of our opinion, 540 P.2d 1269 at p. 1273, is modified to read as follows:

"The judgment of the trial court is reversed and the matter remanded for further proceedings on the remaining issues raised by the pleadings."

It is further ordered, that upon our opinion being so modified, appellees' motion for rehearing is denied.

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2 cases
  • Babbitt v. Asta
    • United States
    • Arizona Court of Appeals
    • January 27, 1976
  • Emerson Realty Group, Inc. v. Schanze
    • United States
    • Florida District Court of Appeals
    • November 29, 1990
    ...Grain Co., Inc., 599 P.2d 1104 (Okl.1979); Weltsch v. 0'Brien, 25 Ariz.App. 50, 540 P.2d 1269 (Ariz.App.1975), modified, 25 Ariz.App. 551, 545 P.2d 62 (Ariz.App.1975); Topham v. L.L.B. Corp., 493 S.W.2d 461 (Tenn.1973). Dismissal is patently improper where the purpose of the proposed amendm......

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