SARA J. GREER, as Administratrix of the Estate of ARZA L. GREER, Deceased, Appellant,
ADOLPH GOESLING, Appellee
APPEAL from a judgment of the Superior Court of the County of Apache. John P. Clark, Judge. Judgment affirmed.
Mr. M. V. Gibbons and Mr. A. S. Gibbons, Attorneys for Appellant.
Mr. Guy Axline, Attorney for appellee.
[54 Ariz. 489] LOCKWOOD, J.
This is an appeal by Sara J. Greer, as administratrix of the estate of Arza L. Greer, deceased, hereinafter called defendant, from a judgment in favor of Adolph Goesling, hereinafter called plaintiff. The factual situation which led up to the [54 Ariz. 490] appeal may be stated as follows: Arza L. Greer died and defendant was appointed the administratrix of his estate. Among the assets of the estate were certain cattle which were mortgaged to plaintiff to secure the payment of a note signed by deceased and dated October 20, 1935, in the sum of sixteen hundred dollars, which note was given in partial renewal of a previous note for two thousand dollars. At some time prior to November 12, 1937, under order of the probate court defendant had sold the cattle covered by the mortgage, and notified plaintiff that she desired to pay the note above referred
to. On the date last mentioned, she delivered to plaintiff her check for the face of the note and interest, whereupon plaintiff endorsed the note as paid in full and delivered it to defendant, and caused the mortgage on the cattle to be satisfied in the office of the county recorder. Before the check was presented for payment, defendant notified the bank on which it was drawn that she had stopped payment thereon, and redelivered to plaintiff the note and chattel mortgage in question, and refused to make payment on the note. Plaintiff thereupon within the statutory time presented a claim to defendant for the amount of indebtedness shown by the note, which she rejected. Plaintiff then filed this action, reciting the foregoing facts in his complaint, and prayed judgment for the amount due on the note, together with a foreclosure of the mortgage on the cattle, and that the proceeds of said foreclosure be applied on the payment of the mortgage, and that any balance due be declared a general claim against the estate of deceased.
Defendant answered, admitting the execution of the note and mortgage by deceased, but setting up the following defenses: (a) Payment in full by deceased in his lifetime; (b) that the money represented by the note was a loan to deceased for the benefit of a third party and was not borrowed for nor used by deceased [54 Ariz. 491] for the benefit of the community and that he was, in reality, only an accommodation signer of the note; (c) that there had been paid on said note one thousand dollars in usurious interest. The money derived from the sale of the cattle had, prior to the trial of the cause, been impounded in the First National Bank of Holbrook, Arizona, to await the further judgment of the court.
A jury was impaneled to try the issues raised by the pleadings. At the conclusion of the testimony, the court took the case from the jury on the ground that there was no material controverted issue of fact for it to decide, and that since the suit was an equity case, the jury sat only in an advisory capacity, and the proper method of procedure, under the circumstances, was to discharge the jury, rather than instruct it to return a verdict in favor of plaintiff. After the jury was discharged, the court rendered judgment against defendant for the amount of the note, plus interest and attorney's fees; that the money received from the sale of the cattle was subject to the lien of the mortgage and should be paid over to plaintiff, and ordered the mortgage foreclosed, with a general judgment against defendant for any deficiency.
There are eight assignments of error, which we shall consider in the manner which seems advisable. The first issue is whether it was error for the court to discharge the jury. This depends upon two questions, the first being as to the nature of the suit, and the second as to the evidence.
It is urged by defendant that this is an ordinary proceeding to recover a debt and, therefore, an action at law. It is the contention of plaintiff that it is a suit to foreclose a mortgage and, therefore, an equitable proceeding.
If the contention of defendant is right, then the court should not have discharged the jury, even if there was [54 Ariz. 492] no controverted issue of fact to be decided, but should have instructed it to return a verdict in favor of plaintiff. If, however, it was an equitable proceeding then, though the verdict of the jury is only advisory in such a case, if there was a disputed issue of fact on the evidence, it was the duty of the court to submit that issue to the jury, for as we have said in the case of Stukey v. Stephens, 37 Ariz. 514, 295 P. 973, 974, "while the court need not heed the advice of the jury, it must harken to it." If, on the other hand, the evidence was such that there was no controverted issue of fact, it was proper for the court to discharge the jury and render judgment in accordance with the evidence. Wallace v. First Nat. Bank, 39 Ariz. 451, 7 P.2d 586.
Upon an examination of the pleadings and the record, we are satisfied that this was an equitable proceeding, for it asks for the foreclosure of a lien on mortgaged property. Consolidated Wagon & Machine Co. v. Kay,81 Utah 595, 21 P.2d 836; Judson Mills v. Norris,166 S.C. 422, 164 S.E. 919; 1 Pom. Eq., 4th ed., par. 181. It is true that the mortgaged property had already been sold by order of the court and converted into cash, but the cash in the bank of Holbrook was subject to the same lien as the cattle had been before the sale. Re Varley & Bauaman Clothing Co., (D.C.) 188 F. 761; 37 C.J. (Liens), par. 24, and cases cited. The ...