HATTIE L. MOSHER, a Widow, Appellant,
VINCENT W. YOUNG, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Henry C. Kelly, Judge. Judgment Affirmed.
Mr. George F. MacDonald, for Appellant.
Messrs. Townsend & Jenckes, for Appellee.
Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, Amici Curiae.
[51 Ariz. 264] LOCKWOOD, J.
This is an appeal by Hattie L. Mosher, hereinafter called defendant, from a judgment in favor of Vincent W. Young, hereinafter called plaintiff. [51 Ariz. 265] The brief of defendant utterly fails to comply with the rule of this court requiring a concise statement of the ultimate facts of the case sufficient to inform us of its nature, and we might well dismiss the appeal upon this ground. We have concluded, however, to examine the abstract of record ourselves, and prepare therefrom a statement of facts sufficient for us to discuss the assignments of error made in defendant's brief.
Plaintiff brought suit against defendant and many other parties, C. Claude Dye being the only one whom we need refer to, to foreclose a mortgage on certain property belonging to defendant. Dye answered, admitting the mortgage, but claiming that he had a prior lien on the property covered thereby on account of a certain tax certificate of sale, setting up the facts in regard to his ownership of said certificate. Defendant answered with a general demurrer and a denial as to all of the allegations of the complaint, except the making of the note and mortgage. This answer was filed on the 20th of June, 1934. The case then proceeded in a leisurely manner through the court for almost a year and a half, there being many motions, affidavits of bias and prejudice, settings, continuances, and other dilatory proceedings, until the 13th of November, 1935, when the matter came up for trial; all parties being present in person or by attorney. At this time defendant Mosher, for the first time, made an oral motion for a continuance under chapter 9, Session Laws 1935, commonly known as the Mortgage Moratorium Act, and announced she would take no further part in the trial. Plaintiff and the other defendants then introduced their evidence, and the court took the matter under advisement, granting leave to defendant Mosher to file a written motion for continuance on the ground above stated, and the other parties time to answer it. The trial judge held the whole matter under advisement [51 Ariz. 266] for some time, and finally denied the application for a continuance, but stated that when judgment was rendered a stay of execution would be granted until January 1, 1937. Formal judgment was rendered on June 17, 1936, which fixed the Dye claim, by reason of his certificate of sale for taxes, as a first lien on the proceeds from any execution sale of the premises, granted the prayer of plaintiff for a foreclosure of the mortgage, and stayed the execution under the judgment as above stated. On December 15, 1936, just before the expiration of the statutory time for appeal, defendant gave her written notice of
appeal from the judgment of June 17th, and thereafter perfected it, and brought the present record before us.
There are two assignments of error only, which read as follows:
"1. We assign as error the action of the trial court in refusing a continuance under the Moratorium Act.
"2. We assign as error the rendition herein of any judgment for any sum in favor of Dye on account of his tax purchase."
We will consider the second assignment. Both plaintiff and defendant Dye contend that it cannot be maintained for the reason that Dye was never served with the notice of appeal; that the appeal bond is made payable only to plaintiff and does not run to Dye; that the notice of filing of reporter's transcript was served only upon plaintiff, and not upon Dye; and, indeed, that nothing whatever relating to the appeal was served upon Dye or his counsel until some time ...