APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment reversed and case remanded, with instructions.
Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellant.
Mr. L. J. Cox, Mr. L. C. McNabb and Mr. O. B. De Camp, for Appellees.
[41 Ariz. 419] LOCKWOOD, J.
S. T. Horwath and Josephine Horwath, his wife, hereinafter called plaintiffs, brought suit against the Phoenix Title & Trust Company, a corporation, hereinafter called defendant, to recover damages for the alleged negligence of defendant in its handling of a certain quitclaim deed deposited by plaintiffs with it as an escrow. The case was tried to a jury, which returned a verdict in favor of plaintiffs in the sum of $5,000, and after the usual motion for new trial was made and overruled the matter was brought before us for review.
The first question presented for our determination is the contention of plaintiffs that we are precluded from considering the evidence in the case for the reason that the motion for new trial was prematurely made. Section 3660, Rev. Code 1928; Ellis v. First Nat. Bank, 19 Ariz. 464, 172 P. 281; Hammels v. Kreig, 29 Ariz. 218, 240 P. 348.
It appears from the minutes of the trial court on November 4th, 1931, that after the
verdict of the jury was received the following entry was made: "Now Plaintiff moves for Judgment on the Verdict. Whereupon it is Ordered granting Motion for Judgment on submission, signing and filing of the proper form." This entry on its face is not a rendition of judgment, but merely the preliminary order referred to in Moulton v. Smith, 23 Ariz. 320, 203 P. 562, and no motion for new trial could be filed until formal rendition of judgment in the manner stated in Kinsley v. New Vulture Mining Company, 11 Ariz. 66, 90 P. 438, 110 P. 1135.
Thereafter on March 26th of the ensuing year the defendant filed a motion for an order correcting such minute entry in accordance with what it claimed to be [41 Ariz. 420] the true facts, which was supported by affidavit, and upon such motion the following minute entry was made: "It is ordered that there may be an order correcting the minute entry of Nov. 4, 1931, to read: 'Motion granted and it is Ordered for Judgment in accordance with the verdict.'" It is the contention of plaintiffs that the notice of appeal and supersedeas bond thereon having been given before March 26th, the court had lost jurisdiction to correct its minute entry as above set forth. Sam v. State, 33 Ariz. 421, 265 P. 622; Navajo R. Co. v. County Bank, 31 Ariz. 128, 250 P. 885.
It is defendant's position, on the other hand: First, that the court had not lost jurisdiction to make a correction of this kind, and, second, that plaintiffs having moved for judgment on November 4th, and having thereafter filed their cost bill and allowed the motion for new trial to be denied without suggesting that it was prematurely taken, are estopped from making such contention on this appeal. We are of the opinion that the position of defendant is correct on both grounds. While we have held several times that the trial court loses jurisdiction of a case for ordinary purposes after an appeal is taken, we have also held in the same cases it still has the jurisdiction to make such orders as are in the furtherance of the appeal, and we think correcting its record in order to show the true state of facts is certainly within the exception. Gotthelf v. Fickett, 37 Ariz. 413, 294 P. 837; Sam v. State, supra; Navajo Realty Co. v. County Bank, supra. We have further held that where counsel for an appellee participate in proceedings on the theory that the motion for new trial is timely they will be estopped from denying it. Maricopa County Municipal Water Conservation Dist. v. Roosevelt Irr. Dist., 39 Ariz. 357, 6 P.2d 898. [41 Ariz. 421] We think the evidence is before us for such consideration as is proper.
We proceed next to examine the various alleged errors presented by defendant. In so doing a brief statement of the undisputed facts of the case is advisable. On April 1st, 1930, Library Court Apartment Company, a corporation, hereinafter called the company, as seller, and plaintiffs, as buyers, entered into an agreement for the purchase and sale of lots 7, 8, 9 and 10 in block 24, Neahr's addition to the city of Phoenix. The consideration agreed to be paid was $45,000, $5,000 being represented by a certain piece of real estate deeded by the plaintiffs to the company and mutually estimated by the parties as worth that sum, $15,000 being represented by a certain piece then on the premises, and the balance in certain monthly and quarterly payments. To insure the payment of the first $10,000 of the purchase price not covered by the transfer of the real estate or the assumption of the mortgage, plaintiffs executed in favor of the company a mortgage on their equity in certain property in the North Kenilworth addition to Phoenix. The agreement is very full in detail, but the dispute arises only over the meaning of certain portions thereof which we quote as follows:
"It is further agreed that time is the essence of this agreement and in the event of default in making any of the payments herein provided to be made when same become due and payable, or in the event of failure of the Buyer to comply with any of the terms hereof, then the Seller may thereupon, at the option of the Seller, enforce the rights of the Seller hereunder, either by the forfeiture of all the rights of the Buyer under this agreement, and all the interest of the Buyer in the lands described herein, and the appurtenances, subject to the provisions hereinafter contained, or by any action in equity or at law for specific performance with damages, or for the recovery of the purchase price with interest. . . .
[41 Ariz. 422] "In case the Seller elects to enforce the forfeiture provisions herein, the Seller may declare said forfeiture by delivering to the Phoenix Title and Trust Company a written declaration of forfeiture in duplicate, addressed to the Buyer and to the Phoenix Title and Trust Company as escrow-holder. The Phoenix Title and Trust Company shall thereupon serve the said declaration of forfeiture upon the Buyer personally or by enclosing one of the copies of said declaration of forfeiture in an envelope directed to the Buyer at the last Post Office address which the Buyer shall have caused to be filed with the Phoenix Title and Trust Company and depositing said envelope, with proper postage affixed thereto, in the United States mail, or if no such address be filed, by addressing the said envelope to the Buyer at Phoenix, Arizona; and should the Buyer fail to eliminate all delinquencies and be free from any default, according to the terms of this agreement, before the expiration of ten days from the date of the depositing of said notice in the United States Mail as provided above, all rights, estates, and interest herein created or then existing in favor of the Buyer or any person claiming under or through the Buyer,
shall utterly cease, terminate and become null and void, and the right of possession, and all equitable and legal interest and estates in the premises herein described, with all improvements and all other appurtenances, together with all sums of money theretofore paid by the Buyer hereunder, shall revert to, revest in, and become the sole property of the Seller in fee, and the Buyer shall have no right, either at law or in equity, to reclaim or recover any compensation for moneys paid, services performed, or improvements placed upon the said land, and the money paid, and the improvements erected shall be forfeited to, be retained by, and become the sole property of the Seller as the liquidated damages for such default, and not as a penalty, and also as consideration for the execution of this agreement; Provided, However, that no forfeiture hereunder shall be enforced until and after the expiration, after such default, of the periods hereinafter provided for and it shall be lawful so to do in the manner herein provided, [41 Ariz. 423] when such default shall have continued for said periods, to-wit:
"In cases where the Buyer has paid less than 20% of the purchase price -- 30 days.
"In cases where the Buyer has paid 20% or more, but less than 30% of the purchase price -- 60 days.
"In cases where the Buyer has paid 30% or more, but less than 50% of the purchase price -- 120 days.
"In cases where the Buyer has paid 50% or more, of the purchase price -- 9 months.
"After the expiration of ten days from the date of service or depositing in the United States mail of declaration of forfeiture as herein provided, the Phoenix Title and Trust Company may deliver the documents held in escrow to the parties entitled thereto."
This agreement was deposited by the plaintiffs and the company with defendant herein as an escrow-holder for hire. It was accompanied by a warranty deed from the company to plaintiff, which was to be delivered when all the payments provided for by the agreement had been made. Since the agreement of sale was to be recorded and plaintiffs were to take immediate possession of the premises thereunder, the latter executed a quitclaim deed to ...