HATTRUDE B. HUGHES and COIT I. HUGHES, Her Husband, Appellants,
UNION OIL COMPANY OF ARIZONA, a Corporation; UNION OIL COMPANY OF CALIFORNIA, a Corporation; WM. E. LYALL and INEZ LYALL, Husband and Wife, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment reversed and cause remanded with instructions.
Mr. E. E. Selden, for Appellants.
Messrs. Laney & Laney, of Phoenix, Arizona, and Mr. L. A. Gibbons, of Los Angeles, California, for Appellees.
[60 Ariz. 131] LOCKWOOD, C.J.
Hattrude B. Hughes and Coit I. Hughes, plaintiffs, on December 14, 1939, brought suit against Union Oil Company of California, a corporation, defendant; Union Oil Company of Arizona, a corporation; and Wm. E. Lyall and Inez Lyall.
The complaint alleged, in substance, that plaintiffs ever since March 5, 1935, were the owners of certain real estate described in the complaint, which had previously been owned by Hattie L. Mosher; that defendant for many years after 1921 had occupied the premises above referred to under a written lease from Mosher which granted the right to it to remove all trade fixtures placed by it on the property for the purpose of operating a service station business; that [60 Ariz. 132] after May 1, 1934, it continued to occupy the premises under a lease agreement which did not make a reservation of the right to remove the fixtures from the premises, but that notwithstanding this, on July 1, 1939, it had, through the Lyalls, removed its fixtures of the value of some $6,000, although notified by plaintiffs not to do so. The prayer was for the value of the fixtures removed, in the sum of $6,000, and under a similar second cause of action for damage to the realty by such removal in the sum of $1,000.
Defendant answered alleging it had no knowledge of whether plaintiffs owned the premises, but admitted that it had leased the premises from Mosher in 1921, with a reservation of the right to remove fixtures, and alleged that it had occupied the premises under such lease up to July 1, 1939, with the exception that by agreement the rent had been reduced in 1934. It admitted the removal of the fixtures, but denied their value to be more than $1,000, and claimed that no damage had been done to the real estate.
Various preliminary motions were made, and on April 18, 1941, defendant filed a motion for summary judgment, supported by a certified copy of a judgment of the superior court of Maricopa County in the case of John W. Ray, Plaintiff, v. H. L. Mosher, H. B. Hughes and Coit I. Hughes, her Husband, Defendants. Attached to the motion was a copy of the judgment. The matter came on for hearing on the motion for summary judgment, which was granted, and this appeal was taken.
The motion for summary judgment was made under sections 21-1211, 21-1212, Arizona Code 1939, which read as follows:
"Summary judgment -- For defending party. -- A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting [60 Ariz. 133] affidavits for a summary judgment in his favor as to all or any part thereof."
"Summary judgment -- Motion and proceedings thereon. -- The motion shall be served at least ten (10) days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
It will be observed therefrom that the judgment shall be granted only if there is no genuine issue as to any material fact, and the moving party is entitled to the judgment as a matter of law. The theory upon which the motion for judgment was made is that the plaintiffs, at the time the fixtures were removed as aforesaid, and at all times thereafter to the filing of this action, were not the owners of the realty involved and had no real interest therein. Of course, if this be true, they were not, as a matter of law, entitled to maintain the action, and the court correctly rendered summary judgment in favor of defendant. If, on the other hand, there was a genuine material issue of fact on this question raised by the pleadings, the motion and the supporting affidavit, the court erred in granting the motion and should have tried the case on the merits.
The complaint alleged specifically that they became the owners of the property on March 5, 1935, and made no claim to any title acquired subsequent to that date. If, then, it appears from the record that any title which they had acquired on or before that date had passed to another party, and there was no claim on the part of plaintiffs that they had afterwards reacquired title, the judgment was proper. Defendant, in order to prove ...