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Day v. Frazer

Supreme Court of Arizona

April 4, 1938

S. E. DAY, Jr., Appellant,
v.
T. H. FRAZER, Appellee

APPEAL from a judgment of the Superior Court of the County of Apache. John P. Clark, Judge. Judgment affirmed.

Mr. Maurice Barth, for Appellant.

Mr. Don T. Udall, Mr. H. C. Denny and Mr. H. S. Glascock, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal from a judgment of the superior court of Apache county dismissing an action. The sole question for our consideration is whether or not the court erred in sustaining a demurrer to the complaint on the ground the latter showed affirmatively there was another action pending [51 Ariz. 475] involving the same parties and issues. This requires a consideration of the complaint. It reads, so far as material to this appeal, as follows:

"II.

"That on or about the 1st day of April, 1935, and continuously for more than twenty years prior thereto, plaintiff was and had been in the lawful possession of those certain premises situate in the county of Apache, State of Arizona, and more particularly described as follows, to-wit:

"Lots three (3) and four (4) and the Southeast quarter (SE1/4) of the Northwest quarter (NW1/4) of Section fourteen (14) in Township twenty-six of Range thirty East of the Gila and Salt River Meridian, Arizona; containing one hundred five and ninety-hundredths acres together with improvements and appurtenances thereunto belonging and that at all times since the said 1st day of April, 1935, plaintiff has been and now is entitled to the possession of said premises herein described and each and every part and parcel thereof.

"III.

"That on the 16th day of March, 1935, in an action then pending in the Superior Court of the State of Arizona, in and for the County of Apache, wherein the defendant herein T. H. Frazer was plaintiff, and plaintiff herein S. E. Day, Jr. was defendant. The said Superior Court entered its judgment and decree in said action wherein the said Court adjudged and decreed that the said T. H. Frazer, defendant herein, was entitled to the possession of the premises hereinbefore described and entitled to have a decree of restitution of said premises by plaintiff herein to defendant herein.

"IV.

Page 141

"That thereafter, and about the 16th day of March, 1935, the writ of restitution of said premises was issued out of said Court and placed in the hands of the Sheriff of the County of Apache for service; and thereafter, and about the 1st day of April, 1935, the said sheriff of the County of Apache did eject plaintiff herein from said premises; and that thereupon defendant [51 Ariz. 476] herein entered upon said premises hereinbefore described and each and every part and parcel ...


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