A. W. SNYDER and FLORENCE E. SNYDER, His Wife, Appellants,
J. P. BETSCH and BESSIE BETSCH, His Wife, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment affirmed.
Mr. M. C. Buck, for Appellants.
Mr. Milton L. Ollerton, for Appellees.
[59 Ariz. 536] LOCKWOOD, C.J.
A. W. Snyder and Florence E. Snyder, his wife, plaintiffs, brought suit against J. P. Betsch and Bessie Betsch, his wife, defendants, seeking damages in the sum of $1,525 on account of various matters set up in their complaint. Defendants moved to dismiss the complaint on the ground that the matters set up therein either have been or should have been fully adjudicated in another case already determined between the same parties. The court granted the
motion to dismiss and plaintiffs have appealed.
The facts necessary for a determination of the appeal appear in the present case and in the previous case in this court. Snyder v. Betsch, 56 Ariz. 508, 109 P.2d 613, 615. We shall refer to the parties as plaintiffs and defendants, respectively, according to their character in the present and not the previous suit.
On January 21, 1938, defendants agreed in writing to sell and plaintiffs to buy certain property described in the contract of purchase and sale. The purchase price was to be paid in installments. Plaintiffs went into possession of the property, and shortly after January 1, 1940, defendants brought suit to recover possession thereof, alleging that the contract provided that a failure of plaintiffs to comply with its terms would work a forfeiture of their rights and release defendants from any obligation to convey the property. There was a further allegation of default and demand for possession. The answer admitted the possession of the premises and a failure to make the payments, but set up as a defense a partial lack of title on the part of the vendors, and various items of damages. [59 Ariz. 537] It further stated that the vendees were willing to perform their part of the contract when the vendors performed theirs. The case came to us on appeal, and we stated in the case cited as follows:
"This is a possessory action and may be maintained by any person having a valid subsisting interest in real property, and a right to its immediate possession. Section 27-1501. It is true that Section 27-1503 provides what the complaint in this kind of action shall contain, but that being procedural is superseded by the Rules of Civil Procedure. Section 21-408 provides: '(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required....'
"We believe the complaint meets the requirements of the statutes and the Rules of Civil Procedure...." (Italics ours.)
and held that the answers stated no defense to the complaint. We continued with this language:
"It may be that under the Rules of Civil Procedure if defendants had counterclaimed, as provided in Section 21-437, they would have been in a position to secure in this action an adjudication of their rights. [Citing case.] We merely suggest this without expressing any opinion since it is not involved. Nor do we think we could treat the answer as a counterclaim since it is very evident that it was not intended as such by the pleader."
Plaintiffs herein thereupon filed the present action, setting up at great length in their complaint the substance of the defense which we held was not good in the case cited. Anticipating, evidently, that it would be contended, as it was, by defendants herein that they were precluded from bringing ...