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Pouquette v. O'Brien

Supreme Court of Arizona

April 1, 1940

CHARLOTTE POUQUETTE, a Widow, Appellant,
v.
MARY P. O'BRIEN, a Widow, and MARICOPA COUNTY, a Political Subdivision of the State of Arizona, Appellees

APPEAL from an order of the Superior Court of the County of Maricopa. Gordon Farley, Judge. Order reversed and case remanded with instructions.

Mr. E. R. Byers, Mr. Urban R. Miller and Messrs. Gust, Rosenfeld, Divelbess, Robinette & Coolidge, for Appellant.

Mr. Frank H. Lyman and Mr. Samuel C. Jefferies, for Appellee O'Brien.

OPINION

Page 980

[55 Ariz. 249] LOCKWOOD, J.

This is an appeal by Charlotte Pouquette, hereinafter called plaintiff, from an order entered on March 23, 1939, by the superior court of Maricopa county, on application of Mary P. O'Brien, [55 Ariz. 250] hereinafter called defendant, continuing until March 4, 1941, by virtue of the provisions of the mortgage moratorium act of 1937, as amended by chapter 34, regular session laws of the fourteenth legislature, the proceedings in a mortgage foreclosure action brought by plaintiff against defendant, and from certain clarifying amendments to the order of continuance.

The factual situation may be stated as follows: On October 4, 1930, defendant executed her promissory note in the sum of $5,299, in favor of plaintiff, and secured the same by a realty mortgage on certain lands, the subject matter of the present foreclosure action. On March 4, 1933, the eleventh legislature, in its regular session, enacted chapter 29, commonly known as the mortgage moratorium act. The title of this act and its first section read as follows:

"An Act Declaring the Existence of an Emergency, and Providing Procedure in Actions and Foreclosure of Real Estate Mortgages.

"Be It Enacted by the Legislature of the State of Arizona:

"Section 1. There is hereby declared to be in the state of Arizona an emergency involving the social, economic and financial welfare of the state as a whole."

The act then provided that all actions for foreclosure of realty mortgages, either pending or thereafter commenced, which had been executed prior to the passage of the act, might be continued by the court for a period of not longer than two years from the date the act became effective, and for certain special rules applying to other similar foreclosure actions in which default had been entered but no judgment signed. On February 15, 1935, the twelfth legislature, by chapter 9 of its regular session, amended chapter 29, supra, to permit further continuances for a period not longer than March 4, 1937, but expressly provided that both chapter 29 and the amending chapter should be deemed [55 Ariz. 251] repealed automatically as of March 4, 1937. On February 16, 1937, the thirteenth legislature, by chapter 8 of its regular session, again amended chapter 29, supra, by permitting extensions to March 4, 1939, and certain other provisions were made regarding the conditions of the extensions. On June 26, 1937, the same legislature, at its second special session, expressly repealed all of the above referred to laws, and enacted a new law, being chapter 17. The title of this new law and its first and second sections read as follows:

"An Act Relating to Mortgages; and Repealing Chapter 29, Session Laws of 1933, Regular Session, Chapter 9, Session Laws of 1935, and Chapter 8, Session Laws of 1937, Regular Session.

"Be it Enacted by the Legislature of the State of Arizona:

"Section 1. Short Title. This act shall be known and may be cited as the mortgage moratorium act of 1937.

"Sec. 2. Actions for Foreclosure. In all actions now pending or hereafter commenced, for the foreclosure of real estate mortgages or on notes secured thereby executed prior to March 4, 1933, the court, upon application of either the plaintiff or the defendant in such action, provided said defendant is not in default for want of pleading, and unless upon hearing of said application good cause is shown ...


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