APPEAL from a judgment of the Superior Court of the County of Gila. T. E. Allyn, Judge. Judgment affirmed in part and reversed in part.
Mr. Frederic A. Shaffer, of Long Beach, California, and Mr. D. E. Reinhardt, of Globe, Arizona, for Appellants.
Mr. A. R. Edwards, Mr. Rouland W. Hill and Mr. George M. Hill, for Appellees.
[57 Ariz. 144] LOCKWOOD, C.J.
This is an appeal by Mike Price and Lata Price, his wife, hereinafter called plaintiffs, from a judgment of dismissal of an action, entered against them and in favor of Joseph Sunfield, Alfred Sunfield, O. N. Owen and Charles R. Byrne, hereinafter called defendants, which judgment also quieted the title to certain property in favor of defendants Joseph and Alfred Sunfield.
The brief of plaintiffs sets up seventeen assignments of error, which are summarized under eight propositions of law, but we think there are but two questions which this court need decide, (a) did the court abuse its discretion in dismissing the action of plaintiffs on the ground of laches, and (b) did it err in quieting the title in the Sunfields as against plaintiffs.
The factual background necessary to determine these questions appears from the record to be as follows: In 1932 plaintiffs were the owners of certain premises in the city of Miami. Defendant Owen at that time filed a mechanic's lien which he assumed covered such property and secured a judgment foreclosing the lien. The property was sold at sheriff's sale under such judgment and purchased by Mrs. Louise Sunfield, the wife of defendant Joseph Sunfield, although it is agreed that it became part of the community estate of herself and her husband. Shortly thereafter this action was filed and a notice of lis pendens duly recorded. The complaint alleged that for various reasons set forth therein the sale of the property above referred to was void and asked that it be so declared, and that plaintiffs have judgment against Joseph and Louise Sunfield for the rental value of the property, which was alleged to be $100 per month, offering to refund to the Sunfields the amount for which the property was sold, with interest and any taxes or cost of repairs legally expended by them in connection with the premises. [57 Ariz. 145] An answer was filed by the Sunfields and Byrne, containing various admissions and denials, and asking for judgment that plaintiffs take nothing and the action be dismissed. Owen did not answer, apparently because no affirmative relief of any kind was asked against him. After various dilatory motions had been presented, argued and considered, on October 13, 1934, the following minute entry was made:
"It is ordered that the motion to strike and motion to make more definite and certain be overruled. (Note: The above order was received by mail on October 12th, J. W. W. Clerk)"
This order disposed of all the preliminary matters raised by the various pleadings which had not been settled previously, and the case then was ready for trial upon the complaint and answer. No further proceedings of any nature were taken until January 16, 1939, when the case was assigned by the judge of the superior court of Gila county to another judge for further action. The next action shown by the record is on November 6, 1939, when the case was set for trial for December 8. On November 18 it was reassigned to another outside judge for trial, the date for hearing having been continued to December 15. On this latter date, for the first time, a motion to dismiss the case for want of prosecution was presented and argued, and on January 16, 1940, it was denied and leave granted to defendants Joseph Sunfield and Byrne to file an amended answer, which was done, and therein for the first time there was a prayer "that defendants' title to said property be declared a valid title, clear of all claims of the plaintiffs." The matter then came on regularly for trial on January 31. It appeared by the amended answer that defendant Louise Sunfield had died, and her estate had been duly probated and distributed, whereupon, on motion of plaintiffs, Alfred Sunfield, her son and one of the distributees, [57 Ariz. 146] was made a party defendant, and the matter continued until February 20 so that he might answer. On that date, default having been entered against defendant Owen, the motion to dismiss was renewed by counsel for defendants, and the following order made:
"Tuesday, February 20, 1940
"Trial and Order for Judgment
"This cause coming before the court regularly for trial at this time before Judge Allyn of Greenlee County, the Judge of this County having heretofore disqualified and the plaintiff with Messrs. Rienhardt & Shaffer as counsel present, the defendant Joseph Sunfield present and with Rouland W. Hill as counsel, Alfred Sunfield, newly made defendant present with A. R. Edwards as counsel, default heretofore entered against O. N. Owen, one of the defendants, thereupon counsel state that they are ready to proceed, thereupon Motion filed by counsel (A. R. ...