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Frederickson v. McIntyre

Supreme Court of Arizona

May 9, 1938

L. D. FREDERICKSON, Appellant,
v.
A. J. McINTYRE, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.

Mr. W. Francis Wilson and Mr. D. Kelly Turner, for Appellant.

Messrs. Townsend & Jenckes, for Appellee.

OPINION

Page 1125

ROSS, J.

A. J. McIntyre, on October 11, 1930, signed a note with L. D. Frederickson to the Phoenix Industrial Finance Corporation in the sum of $347.33 for the accommodation of Frederickson and thereafter, [52 Ariz. 62] on October 20, 1931, paid the balance due on said note of $247.82. On January 26, 1937, he brought this action to recover from Frederickson a balance of $217.82, with interest from October 20, 1931.

Defendant filed a demurrer to plaintiff's complaint "on the ground that said cause of action, if any there be stated... is barred by the statute of limitations." This demurrer was overruled in due course and the defendant was given ten days in which to answer the complaint. Thereafter the defendant filed an answer in which he admitted the execution of the note; admitted that it was for his accommodation, except he alleged plaintiff received the sum of $60 of the consideration of the note. In his answer he admitted that plaintiff paid the sum of $247.82 as alleged; admitted that he had repaid plaintiff thereon only the sum of $30; denied that there was due and owing to the plaintiff from him any sum whatever.

He pleaded the statute of limitations alleging that, if any sum was ever due the plaintiff on account of the plaintiff's paying said note to the Phoenix Industrial Finance Corporation, it fell due on the 20th day of October, 1930, and that, since the complaint was not filed until the 26th day of January, 1937, the cause of action was barred by the three-year statute of limitations. (Rev. Code 1928, § 2060.) He further alleged that the accommodation note had been fully paid and discharged on behalf of defendant and that by reason thereof there existed "no further obligation on the part of this defendant to pay and discharge said promissory note, or any part thereof."

The case was tried before the court without a jury and resulted in a judgment in favor of the plaintiff for the sum sued for, with interest and costs.

We have only the minutes of the clerk to show what took place at the trial. The defendant has failed to include in the record the transcript of the evidence [52 Ariz. 63] taken at the trial, and has not supplied the court with a statement of facts or a bill of exceptions as required by law. The minutes of the court show that plaintiff was sworn and testified; that defendant objected to the introduction of testimony on the ground that the cause of action stated in the complaint was barred by the statute of limitations. The minutes show that this objection was overruled, also that defendant was called by the plaintiff as a witness "on cross-examination under the statute"; that plaintiff introduced in evidence Exhibit A and rested; and that on motion of plaintiff judgment was ordered in his favor.

Thereafter defendant made a motion for a new trial, which was denied. He appeals from the judgment and the order overruling his motion for new trial, and assigns as errors: (1) The overruling of his demurrer; (2) the overruling of his objection to the introduction of any evidence on behalf of plaintiff, it appearing on the face of the complaint that the action was barred by the statute of limitations; (3) the court's order granting plaintiff's motion for judgment on the ground that defendant on cross-examination under the statute waived the statute of limitations; and (4) that the judgment is not supported by the evidence.

Taking up these assignments in their reverse order, it is not possible for the court to determine whether the judgment is supported by the evidence because the evidence is not before the court. In State ex rel. Galbraith v. Central Bank of Wickenburg, 31 Ariz. 337, 339, 253 P. 439, 440, we said:

"No final order or judgment, when it appears the court had jurisdiction of the parties ...


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