APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. V. L. Hash, and Mr. L. V. Rhue, for Appellants.
Messrs. Cox & Cox, for Appellee.
[61 Ariz. 512] FAIRES, Superior Judge.
Plaintiffs below are the appellants in this Court and will be hereinafter referred to as plaintiffs. Appellee was defendant below and hereinafter referred to as defendant.
The action was instituted in the Superior Court of Maricopa County by plaintiffs to recover possession of certain lands situated in Maricopa County, being the southwest quarter of the northwest quarter, Section 33, Township 1 N, Range 1 E, of the Gila Salt River Base and Meridian, which it is alleged is the land of the plaintiffs and held by defendant in adverse possession.
Plaintiffs allegedly bring a possessory action under Section 27-1501, Arizona Code Annotated 1939, for the possession of the land described therein. The proceeding is an equitable action rather than a possessory action in
ejectment. Plaintiffs allege in their [61 Ariz. 513] complaint that they are the owners in fee simple and entitled to the immediate possession of the premises in question; that the defendant makes some adverse claim to said land and the prayer of plaintiffs is for the establishment of plaintiffs' estate in said land and that the defendant be adjudged to have no right therein.
The defendant in his answer generally denies that the plaintiffs are the owners or entitled to the immediate possession of the aforesaid premises and affirmatively alleges that the defendant is occupying lawfully the said premises. There is a further allegation that the sole claim of plaintiffs in and to the premises is by virtue of a sheriff's deed issuing out of a judgment rendered in the Superior Court of Maricopa County in favor of the plaintiffs and against the defendant, and the sale of said land under the execution to plaintiffs, which took place on the 26th day of August, 1930, and for which a sheriff's deed was issued to plaintiffs on the 11th day of July, 1931. In this suit, which was No. 31-240 in the Superior Court of Maricopa County, other real property, than the premises here involved owned by the defendant, was sold under the execution and included in the sheriff's deed.
Defendant here sets up the further defense that under the execution sale and the deed acquired thereunder plaintiffs undertook to recover possession of the land in question from the defendant by means of a writ of assistance which was denied in the original suit, No. 31-240, between the same parties, which is part of the record here. In that proceeding plaintiffs filed a petition for a writ of assistance as to all the property covered by the sheriff's deed, which application was filed March 21, 1932, and thereafter denied as to the property involved in this suit but granted as to all other property covered by the sheriff's deed. [61 Ariz. 514] While notice of appeal from that order was given, the appeal was not perfected by these plaintiffs.
In this case the defendant also alleges that plaintiffs are barred and estopped from prosecuting this action by reason of Sec. 29-101 Arizona Code Annotated 1939, which is the three year statute of limitation, and Sec. 29-102, Arizona Code Annotated 1939, the five year statute of limitation.
This subsequent action was instituted on the 2d day of July, 1937; approximately five years elapsed before the case was actually tried on the 13th day of March. 1942.
At the conclusion of the trial the case was submitted on two propositions of law: (1) Whether the matter had been adjudicated theretofore by the proceeding in No. 31-240 hereinabove referred to; (2) whether the statute of limitation had run against the plaintiffs. Following which the trial court rendered its judgment in favor of the defendant, presumably on both grounds, from which this appeal was taken.
We will not extend this opinion by recital of assignments of error though in some instances, by indirection only, have plaintiffs pointed out specific errors ...