J. R. BOYLE, Appellant,
CLAIRE N. WEBB, as Administratrix With the Will Annexed of the Estate of W. T. WEBB, Deceased, Appellee
APPEAL from a judgment of the Superior Court of the County of Cochise. C. C. Faires, Judge. Judgment affirmed.
Messrs. Elliott & Glenn, for Appellant.
Messrs. Bilby & Shoenhair, Mr. Harold C. Warnock and Mr. Henderson Stockton, for Appellee.
Mr. Maurice Barth and Mr. Jacob Morgan, Amici Curiae.
[54 Ariz. 190] ROSS, C.J.
This appeal presents questions of pleading and evidence.
The plaintiff, W. T. Webb, on January 7, 1938, commenced the action against defendant, J. R. Boyle, on a past-due promissory note for $12,825 and to foreclose on some shares of stock of the Seventy-Six Cattle Company, pledged by Boyle as collateral to the note.
Thereafter, and within the time fixed by law, the defendant filed an answer which, in effect, admitted the execution and delivery of the note to Webb but averred that at the time he and Webb were partners in the cattle business and that it was given with the agreement that it should be paid out of the profits of the business; that such partnership had not been dissolved and no settlement or accounting had been had between the partners. He prayed for an accounting of the partnership business and that any sum found due him from plaintiff be offset against his note. He [54 Ariz. 191] denied, on information and belief, that he ever pledged stock in the Seventy-Six Cattle Company to plaintiff.
There were other allegations in the answer which we do not recite, which may or may not have been material. We state enough of the answer to show that it was defendant's contention that the note grew out of the partnership between him and Webb, and that such partnership was still in existence and its business affairs had not been closed or an accounting had.
Upon the issues thus made the court, on April 19, 1938, the parties agreeing thereto, set the case for trial on May 16th before the court without a jury. Thereafter, an affidavit having been filed disqualifying the local judge, the Honorable JOHN WILSON ROSS, he vacated the setting for the 16th and, realizing that such vacation order was without jurisdiction, immediately vacated it, leaving the setting for May 16th. By mutual consent the Honorable C. C. FAIRES, Judge of the Superior Court of Gila County, was selected to try the case.
In the meantime, the defendant, on May 9th, filed an amended answer confining his defense solely to a plea in abatement, alleging as a ground therefor that at the time he gave plaintiff the note he and plaintiff were partners in the cattle business and that it was agreed between them that such note should be paid out of the profits of the business; that such partnership had not been dissolved but was still in existence and its accounts unsettled. It was alleged in the amended answer that a suit for dissolution of the partnership and for an accounting had been filed by defendant Boyle in Graham county, and the prayer was that the present action be abated.
The plaintiff demurred to the plea in abatement on the ground that defendant's answer to the merits waived such plea. The court sustained this demurrer. Thereafter defendant withdrew from the trial and the [54 Ariz. 192] plaintiff submitted his evidence to the court. The ...