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The Federal Rubber Company v. Pruett

Supreme Court of Arizona

May 6, 1940

THE FEDERAL RUBBER COMPANY, a Corporation, Appellant,
v.
MYRTLE E. PRUETT, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. E. W. McFarland, Judge. On petition to recall mandate. Restraining order dissolved and recall of mandate denied.

Messrs. Townsend, Jenckes & Wildman, for Appellant.

No appearance for Appellee.

Messrs. Baker & Whitney and Mr. Lawrence L. Howe, specially appearing for protestant Hartford Accident and Indemnity Company.

OPINION

Page 89

[55 Ariz. 391] LOCKWOOD, J.

Plaintiff herein filed petition in this court for recall of the judgment and mandate heretofore transmitted to the trial court, and asked for a temporary order restraining the trial judge from rendering judgment on the mandate. The temporary restraining order was issued, but the recall of the mandate was deferred pending a determination of the questions involved.

Hartford Accident and Indemnity Company, a corporation, hereinafter called protestant, appeared specially for the purpose of objecting to the jurisdiction of this court to modify its mandate upon any recall thereof by amending or enlarging the same so as to direct the trial court to enter any judgment or order against protestant.

The situation which led up to these proceedings is as follows: Plaintiff, after filing its complaint in the trial court, took out a writ of garnishment directed to the Coulter Motor Co., a corporation, hereinafter called the garnishee. The latter answered, stating that defendant owned twenty-five shares of its capital stock, and that it was indebted to her in a small sum. Thereafter plaintiff, defendant and garnishee entered into the following stipulation:

"It is hereby stipulated and agreed... that the defendant Myrtle E. Pruett may file a replevin bond under the provisions of paragraph 4264, R.C. 1928, in the amount of two thousand dollars ($2000) and that the Clerk of the Superior Court may accept and approve a bond in said amount. Upon the filing and approval of said bond, it is stipulated and agreed by and between the parties hereto that the property in the possession of the garnishee, as shown by its answer herein, is released from said writ of garnishment and that said bond is substituted therefor, and that no liability will be asserted or claimed herein against the garnishee."

[55 Ariz. 392] and a bond executed by defendant with protestant as surety thereon was filed, which reads as follows:

"Replevin Bond on Garnishment

"Know all Men by These Presents:

"Tht Myrtle E. Pruett, as principal, and Hartford Accident & Indemnity Company, a surety company authorized to do business in the State of Arizona, as surety, are held and firmly bound unto the Federal Rubber Company, a corporation, in the sum of two thousand dollars ($2000.00), for the payment of which well and truly ...


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