ROBERT E. HARVEY and NELL HARVEY, His Wife, Appellants,
JOHN L. AUBREY, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Messrs. Cox & Moore and Mr. B. L. Hibbert, for Appellants.
Mr. Marshall W. Haislip, for Appellee.
[53 Ariz. 211] LOCKWOOD, J.
This is an action in forcible detainer by John L. Aubrey, hereinafter called plaintiff, against Robert E. Harbey and Nell Harvey, his wife, hereinafter called defendants, to recover possession of certain real property. Judgment went for plaintiff, and defendants have appealed.
The complaint sets up, in substance, that plaintiff was the owner of certain property; that on or about the 29th of June, 1937, he leased, in writing, the premises to the defendants for such time as would be necessary to cultivate and gather a certain crop of cotton then growing on the premises; that the defendants had completed the gathering of the cotton on or about [53 Ariz. 212] the 25th of January, 1938, but still held possession of the premises against the will and consent of the plaintiff, and that plaintiff had made written demand for possession of the premises, but defendants refused to give it. The complaint further alleged:
"That the defendants herein do not now have any lease on the above described premises, nor do they have any rights to the possession of said premises."
Defendants answered, admitting the ownership of the property to be in plaintiff, and that it had been leased to them as alleged by plaintiff, and that the original lease had expired, but claimed that they held possession of the premises under a new oral lease from the plaintiff for the season of 1938, on the same terms and conditions as the former lease.
The case went to trial before a jury. The original written lease was offered in evidence without objection, and both parties then presented testimony in support of their theories of the case, defendants claiming that a new oral lease had been given them, and plaintiff insisting that it had not. All of the parties agreed that the original lease had, by its terms, expired. The court then instructed the jury that the real issue was whether or not a new oral lease had been given to the defendants in 1938, after the expiration of the original lease, and that the burden of proof was on defendants to show that this was the case, and the case was then argued. During the course of the argument, counsel for defendants attempted to argue some feature of the written lease
of 1937, which it was agreed had expired. This was objected to by counsel for plaintiff, and the court, after some discussion, refused to permit the argument to proceed along the line attempted. The jury returned a verdict in favor of plaintiff, and a motion for new trial was made. On a hearing of this motion the principal objection [53 Ariz. 213] urged was the refusal of the court to permit the argument above referred to.
It is difficult to determine just exactly what it was that counsel for defendants attempted to argue, but so far as we can ascertain from the record it was something concerning the clause in the written lease of 1937, which reads as follows:
"The party of the first part further covenants and agrees that upon the harvesting of said cotton crop the party of the second part shall have the opportunity to lease said premises for a further period of one year at a reasonable rental, said rental to be determined on said date."
The court insisted that such clause was not an issue in the case and could not properly be argued, the only issue being whether or not by virtue of clause a new agreement had actually been ...