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Jamison v. Franklin Life Ins. Co.

Supreme Court of Arizona

April 19, 1943

HARRY JAMISON and CHARLOTTE JAMISON, Husband and Wife, Appellants,
THE FRANKLIN LIFE INSURANCE COMPANY, a Corporation; O. C. WILLIAMS, as State Land Commissioner of the State of Arizona; B. G. HARRISON and HENRY H. CLARK, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Messrs. Armstrong, Kramer, Morrison & Roche, and Mr. Guy Axline, for Appellants.

Messrs. Fennemore, Craig, Allen & Bledsoe, for Appellees Franklin Life Insurance Company and B. G. Harrison.


Page 266

[60 Ariz. 309] ROSS, J.

This action involves the question as to who is the owner of certain land leases from the State of Arizona and seeks to have that question decided. The plaintiffs, Harry Jamison and Charlotte Jamison, husband and wife, claiming to be the owners, commenced this action against the Franklin Life Insurance Company, a corporation, which also claims ownership [60 Ariz. 310] thereof by virtue of a settlement agreement hereinafter set out.

Defendant B. G. Harrison is an officer and agent of the defendant corporation, Henry H. Clark is the escrow keeper of the land leases and O. C. Williams is the State Land Commissioner of the state.

The Insurance Company, in addition to its answer to plaintiffs' complaint, filed a counterclaim which it later dismissed, leaving the issues those made by the complaint and answer.

On December 27, 1941, the defendants filed their motion for a summary judgment and on December 30, 1941, plaintiffs likewise moved for a summary judgment, each basing his motion on the pleadings, depositions, admissions and affidavits then on file with the court. These motions were made pursuant to the statute providing for summary judgments. Section 21-1212, Arizona Code 1939, reads:

"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."

After considering the motions, the court on February 20, 1942, made findings of fact, conclusions of law and entered judgment for defendants. The plaintiffs have appealed.

This action is a by-product of another action between the parties hereto, which was brought in the Superior Court of Apache County (the county where the property involved is located and where plaintiffs reside) [60 Ariz. 311] and therein prosecuted to final judgment, being Cause No. 2065. It is the contention of defendants that the judgment in that action on all issues was in their favor and that such judgment is fully sustained by the law and the evidence. This is disputed by plaintiffs and the basis of their contention can best be presented in a statement of the salient facts out of which the present litigation has grown.

Plaintiff Harry Jamison was engaged in the business of growing and handling range livestock under the name of the Apache Land and Cattle Company, a Colorado corporation with headquarters at Navajo Springs in Apache County, Arizona, and had been so engaged from about July, 1925. The Apache Company was incorporated with a capital stock of 5,000 shares and Jamison owned all of said shares except three and was its president and general manager. Beginning in 1925 and from time to time the Apache Company had borrowed from the Insurance Company large sums of money which at the times herein mentioned amounted to $246,031.33, secured by a realty mortgage on 56,244 acres of patented real estate belonging to the Apache Company and 93 leases from the State of Arizona of state lands to Harry Jamison, covering 56,414 acres, as additional collateral security and assigned by Jamison and his wife to B. G. Harrison, agent of the Insurance Company.

With the debt long overdue, and the Insurance Company insisting that it be paid, on or about June 17, 1940, Jamison and B. L. Tamplin, secretary-treasurer of the Apache Company, went to Springfield, Illinois, where the officers and directors of the Insurance Company reside, and, after canvassing the situation together, the parties made and entered into the following agreement, omitting signatures:

[60 Ariz. 312] "THIS AGREEMENT MADE in quadruplicate this 17th day of June, A.D. 1940, by and between THE FRANKLIN LIFE INSURANCE COMPANY, a corporation of Springfield, Illinois, hereinafter referred to as First Party, B. G. HARRISON, ...

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