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Little v. Brown

Supreme Court of Arizona

May 16, 1932

O. W. LITTLE, Appellant,
v.
EUGENE J. BROWN, Appellee

APPEAL from a judgment of the Superior Court of the County of Mohave. D. A. Bridges, Judge. Affirmed.

For former opinion in same case, see 36 Ariz. 194, 283 P. 924.

Mr. Louis L. Wallace and Mr. David P. Hatch, for Appellant.

Mr. Phil Jacobson and Mr. Carl G. Krook, for Appellee.

OPINION

[40 Ariz. 207] ROSS, J.

This is the second time this case has come to this court. On the previous appeal the question involved was the power of the court,

Page 611

after the plaintiff had introduced his evidence, to direct an involuntary nonsuit, and we held that no such power existed. We also held that plaintiff had made out a prima facie case and for that reason it was error to dismiss him. We refused, although urged by appellant to do so, to enter judgment or to remand with directions to the trial court to enter judgment for plaintiff on his prima facie case. In the order remanding the case we said:

". . . The court's error was made at the instance of defendant, but we think the ends of justice demand that he be permitted to submit evidence in support of his defenses. The cause is remanded, therefore, with directions that a new trial be granted, on condition that defendant first pay the costs of this appeal; otherwise that the judgment be entered for plaintiff."

Upon the case being returned to the trial court, defendant Brown performed the condition upon which a new trial was granted by paying the costs of appeal, amounting to the sum of $579.45, and thereafter filed a supplemental answer alleging that W. E. Little was the real and actual party plaintiff in interest and [40 Ariz. 208] that on or about February 15, 1930, he and defendant Brown settled and compromised the litigation by defendant Brown paying him $300. That thereafter the following instrument was filed in the superior court of Mohave county, the county in which the action of O. W. Little versus Eugene J. Brown was pending, to wit: To the Clerk of said Court:

"You will enter a dismissal of the above entitled action with prejudice.

"Los Angeles, Calif., March 5, 1930.

"[Signed] O. W. LITTLE, Plaintiff."

Otherwise the pleadings as they stood in the former trial, the substance of which is stated in our former opinion, found in 36 ...


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