Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Merryman v. Sears

Supreme Court of Arizona

October 25, 1937

HOLLAND MERRYMAN, Appellant,
v.
W. P. SEARS, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr. George F. Macdonald, for Appellant.

Messrs. Phillips, Holzworth & Phillips, for Appellee.

OPINION

[50 Ariz. 413] ROSS, J.

The plaintiff, W. P. Sears, brought this action on February 10, 1936, against the defendant, Holland Merryman, on her promissory note for $14,900, dated August 1, 1928, bearing interest at 8 per cent. per annum and payable on or before five years after date, as modified by an agreement dated March 31, 1933, extending the time of payment to April 1, 1934, reducing the

Page 944

principal to $12,000 and the interest to 6 per cent. per annum, and to foreclose a real estate mortgage given by defendant as security to the note.

The defendant by her second amended answer admits giving the note and mortgage to the plaintiff; denies that plaintiff is the owner and holder thereof; pleads payment and denies that she is indebted to plaintiff in any sum whatever.

When all the evidence was in, plaintiff made a motion that the court instruct the jury to return a verdict in plaintiff's favor and the motion was granted. The verdict was for $12,000, with interest at 6 per cent. per annum from February 1, 1936, and for attorney's fees taxed at $250. The judgment foreclosed the mortgage [50 Ariz. 414] lien and ordered the property sold to satisfy the judgment but made no provision for any deficiency.

The defendant has appealed. She, by her assignments, suggests several reasons why the judgment should not stand, such reasons being:

(1) The refusal of the court to grant defendant a continuance under the moratorium act approved February 15, 1935, being chapter 9, Laws 1935. The defendant in her answer applied for such continuance giving as a reason therefor

"that these defendants are desirous of paying these obligations against said property, but due to the fact of the depressed condition now existing in the United States, and especially in this locality, these defendants have been unable to refinance said loan, or obtain sufficient means with which to pay off said indebtedness."

On April 6, 1936, the motion for continuance was heard, at which hearing five witnesses were sworn and testified, and on April 8th documentary evidence was introduced, at the conclusion of which the motion for continuance was denied. The so-called moratorium act provides that the court may continue actions for foreclosure of certain real property mortgages "unless upon hearing of said application good cause is shown to the contrary" (section 2). The oral testimony taken at the hearing of the motion for continuance is not before us and we assume that it supported the court's order denying the application.

(2) The refusal of the court, on defendant's motion or request made on the day of trial, to continue the case until plaintiff's attendance could be secured so that defendant could cross-examine him as ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.