W. H. GIBBS, Appellant,
ETHEL PRYOR BASHAM, Individually and as Executrix of the Estate of JOHN COLVIN BASHAM, Deceased, Also Known as J. C. BASHAM, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Elbert R. Thurman, Judge. Judgment reversed and case remanded with instructions.
Messrs. Houston & Dodd and Mr. James D. Barry, for Appellant.
Messrs. Hummel, Hummel & Wyatt and Mr. H. A. Wardenburg, for Appellee.
[53 Ariz. 358] LOCKWOOD,
W. H. Gibbs, hereinafter called plaintiff, has appealed from a judgment of the superior court of Pima county, in favor of Ethel Pryor Basham, individually and as executrix of the estate of John Colvin Basham, deceased, also known as J. C. Basham, hereinafter called defendant.
There are three assignments of error, which read as follows:
"1. The court erred in entering a judgment not supported by the pleadings.
"2. The court erred in admitting evidence for the purpose of showing that Basham had title to, or right to possession of the property prior to the time Basham acknowledged Gibbs' title and right to possession and accepting an assignment of the lease to the premises from him.
"3. The court erred in entering judgment that Gibbs or McNew did not have, and never had, any title or color of title or right to possession of the premises, and in not entering judgment that Gibbs was entitled to possession of the premises."
[53 Ariz. 359] There is no reporter's transcript, bill of exceptions nor agreed statement of fact, and we cannot, therefore, consider the ex parte statement of the facts in regard to this transaction set up by plaintiff in his opening brief, but are compelled
to consider the case on the abstract of record alone. We consider first whether the judgment is supported by the pleadings. The complaint upon which the case was tried is substantially as follows:
Omitting the formal part, it recites that plaintiff and defendant's testator entered into a contract, which reads as follows:
"This agreement, made and entered into this, the 27th day of April, 1931, by and between W. H. Gibbs of Ajo, Pima County, Arizona, the party of the first part, and J. C. Basham, of the same ...