West v. Baker

• Decision Date: 19 September 1972
• Docket Number: No. 2,CA-CIV,2
• Citation: 500 P.2d 1139,18 Ariz.App. 151
• Parties: Mary WEST, Appellant, v. Joy BAKER, as Guardian of the Estate of Jeffery Martin Baker, a minor, and Leslie and Joy Baker, husband and wife, Appellees. 1133.
• Court: Arizona Court of Appeals

Page 1139

500 P.2d 1139

18 Ariz.App. 151

Mary WEST, Appellant, v. Joy BAKER, as Guardian of the Estate of Jeffery Martin Baker, a minor, and Leslie and Joy Baker, husband and wife, Appellees.

No. 2 CA-CIV 1133.

Court of Appeals of Arizona, Division 2.

Sept. 19, 1972.

Rehearing Denied Oct. 31, 1972.

Johnson, Hayes, Morales & Stompoly by J. Mercer Johnson, and Nolen L. McLean, Tucson, for appellant.

Bilby, Thompson, Shoenhair & Warnock, P.C., by Marvin S. Cohen, Tucson, for appellees.

HATHAWAY, Judge.

This appeal arises from a judgment entered in garnishment proceedings instituted by appellees. The thrust of this appeal is directed to the lower court's jurisdiction.

A brief summary is as follows. Appellant, a Texas resident, purchased a parcel of real property located in Texas from Aritex Land Company, Inc., an Arizona corporation. In connection with this 1967 transaction, appellant executed appropriate documents including a promissory note in the principal amount of $747,254.06, payable in annual installments of $50,000 or more plus interest at six percent until March 1, 1977, when the entire unapid balance was due. In 1968, Aritex conveyed the note to a Texas bank as collateral security for a loan to Aritex. The endorsement of the note recited that the assignment thereof was limited to the first $370,000 of principal and interest paid. Notice of this assignment was given to and accepted by appellant who was directed to make the payment on her note for 1969, 1970, 1971, 1972 and 1973 to the bank.

Aritex subsequently conveyed its remaining interest in the note to Chaparral Cattle Co., a Texas corporation. This latter conveyance was attacked by appellees as a fraudulent conveyance and in 1969, they obtained a judgment in Pima County Superior Court declaring the conveyance from Aritex to Chaparral to be fraudulent and void as to them.

In March, 1970, appellant commenced an action in Hudspeth County, Texas, against Aritex to reform her vendor's lien and deed of trust, quiet title to her real estate, and secure credits on her promissory note. Appellees intervened in that action which was subsequently transferred to El Paso County.

On September 26, 1970, a writ of garnishment was served on appellant in Pima County wherein appellees claimed an indebtedness against Aritex in the sum of $100,000 plus interest. The garnishee responded that she was not indebted to the defendants. Appellees filed a controverting affidavit and tender of issue to which garnishee responded.

On July 7, 1971, judgment was entered in favor of the appellees against appellant in the amount of $106,849.66 with interest at six percent from February 8, 1971, until paid. The Court ordered this amount to be paid as follows: $17,135.24 immediately, ¹ and the amounts as they would become due pursuant to the promissory note executed by appellant in 1967 which would exceed the amount then due the bank until satisfaction of the garnishment judgment would be accomplished. The court further ordered all payments to be credited on appellees' judgment against Aritex and its president, that such payments would also constitute credit on appellant's note to Aritex, and that Aritex and appellant deliver a copy of the garnishment judgment to the Bank of El Paso with instructions to attach the copy to the aforesaid promissory note.

Both in the trial court and on appeal, appellant made numerous references to the Texas lawsuit, her position being that the subject matter of the garnishment be adjudicated in Texas. Appellees have presented to this court as an appendage to their brief an authenticated copy of a disclaimer filed by appellant in the Texas action on January 27, 1972. Although this disclaimer is not part of the record on appeal, it is not inappropriate for an appellate court to consider such extrinsic evidence as to matters which have occurred since the filing of the appeal. Day v. Wiswall's Estate, 93 Ariz. 400, 381 P.2d 217 (1963). We may consider extrinsic evidence which demonstrates that there is no real controversy or that no effectual relief can be granted by consideration of the appeal. Intertype Corp. v. Pulver, 101 Fla. 1176, 135 So. 793 (1931); Stockyards Nat'l Bank v. Arthus, 45 Idaho 333, 262 P. 510 (1927); 5 C.J.S. Appeal and Error § 1377 (1958).

The disclaimer, the filing of which appellant concedes, recites in pertinent part:

'Plaintiff (appellant herein) disclaims any and all right or claims to credit upon said note, or to offset against payments of principal and...