WOOD'S PHARMACY, INC., a Corporation, C. M. WOOD, MRS. R. T. FRANKLIN, D. S. DUNCAN, JOHN DOE, RICHARD ROE and MARY MOE, Appellants,
J. C. KENTON, Appellee
APPEAL from an order of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Order set aside.
Mr. George D. Locke and Mr. J. Bolivar Sumter, for Appellants.
Messrs. Lynch and Herring, for Appellee.
[50 Ariz. 54] LOCKWOOD, J.
This is an appeal from an order of the superior court of Maricopa county entered nunc pro tunc July 20, 1936, for the purpose of correcting a minute entry of March 31st. The record shows that J. C. Kenton, hereinafter called plaintiff, filed a certain action in the superior court of
Maricopa county against Wood's Pharmacy, Inc., a corporation, and others, hereinafter called defendants. After various preliminary pleas were disposed of, a hearing was had on July 8, 1935, on a motion to show cause why an audit should not be made. After considerable evidence was introduced on this motion, the court took the matter under advisement, and no further proceedings were had until March 31, 1936, when the following order was made:
"Comes now the plaintiff appearing by counsel, Lynch & Herring by A. R. Lynch. Thereupon, it is ordered this cause is dismissed with prejudice on motion of counsel for the plaintiff."
Thereafter, and on April 29th the plaintiff filed the following motion:
That an order be issued amending according to truth and justice that order entered on the records of the clerk of the superior court on March 31, 1936, in the above entitled and numbered cause which now reads, 'dismissed with prejudice on motion of the plaintiff,' and that the said order be amended and changed nunc pro tunc to read, 'dismissed without prejudice on motion of the plaintiff.'
"In support of this motion your petitioner states, that on the 31st day of March 1936, A. R. Lynch, one of the attorneys for the plaintiff in the above entitled and numbered cause appeared before the court and [50 Ariz. 55] under section 3813, R.C.A. 1928, requested the court to enter an order dismissing the above entitled action. That through inadvertence or mistake the clerk of the said court caused the order to be entered as it now stands in the records of the clerk of the superior court as above set out. That the motion to dismiss is made under section 3813, R.C.A. 1928, and was not intended at that time or at any time to be a dismissal of the action prejudicing the plaintiff's right to file over or to begin an action seeking relief against the defendants at a later date."
The court, on May 11th, took evidence on the motion to correct as above set forth, and on July 20th entered the following order:
"It is hereby ordered granting motion of plaintiff to correct the record so that the minute entry of March 31, 1936 shall read, 'Order this cause dismissed without prejudice, on motion of ...