F. L. ZIMMERMAN and MARGARET ZIMMERMAN, Appellants,
WESTERN BUILDERS AND SALVAGE COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed and cause remanded, with instructions.
Mr. F. L. Zimmerman and Mr. M. C. Burk, for Appellants.
No appearance in the Supreme Court for Appellee.
[38 Ariz. 93] LOCKWOOD, J.
On the twenty-first day of December, 1929, F. L. Zimmerman brought suit against David Rubeinstein and Western Builders & Salvage Company, a corporation, which latter we shall hereinafter call the company, for damages for the breach of an oral contract by the terms of which the company had agreed to remodel Zimmerman's residence, located at 22 West Moreland Street, Phoenix, Arizona. This action, which we shall hereinafter call the damage suit, was No. 31364 -- B in the lower court. Thereafter, and on the first day of March, 1930, the company brought the present action against Zimmerman and his wife for an alleged balance due as the result of the contract referred to in suit No. 31364 -- B, and to foreclose a mechanic's and materialman's lien against the property in question. This action, which we shall hereafter call the foreclosure suit, was No. 31748 -- B in the lower court. During the pendency of the two suits in the lower court, the following proceedings were had:
The company on motion of Zimmerman gave a bond for security for costs in the foreclosure suit in the sum of $200, and moved to consolidate the damage suit with the foreclosure suit, which motion was denied. Thereafter the company filed an amended answer and cross-complaint in the damage suit, praying for substantially the same relief as it asked in the foreclosure suit. To this cross-complaint Zimmerman filed a plea in abatement, and the court ordered that the plea would be sustained if the company did not dismiss its foreclosure suit. Thereafter the company elected to dismiss the foreclosure suit, and to stand on its cross-complaint in the damage suit, and an order of dismissal was duly made by the court.
A few days thereafter the trial court, both parties being represented by counsel, reinstated the foreclosure [38 Ariz. 94] suit and sustained the plea in abatement in the damage suit. Thereafter Zimmerman interposed a plea in bar and to the jurisdiction in the present action on the ground that the court, having dismissed it, had no right to reinstate it, for reasons which we shall hereinafter discuss. This plea was overruled.
The company then asked leave to try the damage suit with the foreclosure suit, which motion was again denied by the trial court. On June 13th, 1930, the two cases were heard separately by the court. No judgment was rendered at that time, but the court later filed a written opinion, discussing both cases together, and on July 14th an order for judgment was made in each case. The minute entry thereof reads as follows:
"F. L. Zimmerman moves for Judgment upon the opinion filed herein. Thereupon it is ordered for Judgment for the Plaintiffs in the respective causes in accordance with the amended decision filed herein upon July -- , 1930. It is further ordered for foreclosure of lien and for 20 days stay of execution as prayed in each cause."
A formal written judgment in the damage suit was filed July 22, 1930, and one in the foreclosure suit was filed August 4th. Both of these judgments were dated as of the 14th of July. Apparently, however, the trial court intended to render judgment in the damage suit first, for in such judgment no reference whatever is made to the foreclosure suit, while in the judgment in the latter case, the following language appears:
"It is further ordered and decreed, that in view of the fact that this court did, on the 14th day of July, 1930, in Cause No. 31364 -- B, in which the defendant F. L. Zimmerman was plaintiff, and the plaintiff herein was defendant, render judgment in favor of said F. Louis Zimmerman in the sum of $880.00 and interest from November 5th, 1929, plus his costs, [38 Ariz. 95] against the plaintiff herein, the said F. L. Zimmerman, defendant herein, is hereby allowed and permitted to off-set as against the judgment herein, his judgment in Cause No. 31364 -- B amounting to $880.00 together with accumulated interest and costs, by satisfying said judgment in Cause No. 31364 -- B, and by payment to Western Builders and Salvage Company, a corporation, plaintiff herein, the difference with interest at six per cent. from July 1st, 1929, plus costs, whereupon judgment in this Cause shall be satisfied of record."
No appeal has ever been taken from the judgment in the damage suit, but after the usual motion for a new trial was made and overruled, Zimmerman, whom we shall hereafter call appellant, has brought the judgment in the foreclosure suit before us for review.
It is first urged by appellant that since the company had elected to dismiss this action and stand upon its cross-complaint, the trial court lost jurisdiction and was without any right to reinstate the present action. We are of the opinion this contention is not well founded. It is the general rule of law that it is discretionary with the trial court to reinstate an action previously dismissed, and that such reinstatement will not be set aside except for an abuse of discretion. Allbin v. City of Seattle,98 Wash. 275, 167 P. 922; Anderson ...