WILLIAM S. SEGAR, Appellant,
W. K. BAILEY, Appellee
APPEAL from a judgment of the Superior Court of the County of Mohave. J. W. Faulkner, Judge.
Judgment modified and affirmed.
Mr. Charles P. Elmer, for Appellant.
Mr. Carl D. Hammond, for Appellee.
Stanford, J. McAlister, C. J., and Ross, J., concur.
[62 Ariz. 94] This action was brought in the superior court by appellee against the appellant, who had assigned to him four promissory notes from J. B. Graham. The notes were each for $ 500.
[62 Ariz. 95] Prior to his action and while Graham was still the owner of the notes, he brought an action on the first of the four notes. The notes were all dated June 18, 1940, and the maturity of the first one was August 1, 1940. Suit was brought on it August 30th of that year. Summons was issued the same date and the return of the sheriff shows receipt of summons August 30th, but the return was dated February 12, 1942, setting forth that he was unable to locate Segar, the defendant in the action.
For each note in the instant case a separate cause of action is set out in the complaint. The case was tried without a jury and findings and judgment were rendered in favor of appellee on August 2, 1943. From such judgment this appeal is taken.
We believe the six assignments of error complained of by the appellant can be covered by the following: (1) As to the cause of action brought by J. B. Graham against this appellant before the filing of this case, the trial court erred in denying the motion to dismiss because of another action pending and undetermined; (2) that appellee was not the real party in interest; (3) that there was no consideration for the delivery of the notes in question to the assignee, the appellee herein; (4) that the notes were executed and delivered under duress; (5) that the trial court failed to make findings as to whether or not the appellee was the only party in interest; (6) that costs for witness J. B. Graham should have been disallowed because he was a part owner of the notes and therefore a necessary party to the action.
In reference to the question of another action pending, our Code, Sec. 21-320, reads as follows:
"Abatement if summons not served in one year. -- An action shall abate if the summons be not issued and served, or the service thereof by publication commenced [62 Ariz. 96] within one (1) year from the filing of the complaint."
Section 21-301, Arizona Code Annotated 1939, reads:
"Commencement of action. -- A civil action is commenced by filing a complaint with the court."
The present action was filed in the superior court of Mohave County on May 22, 1943. The records of that court show, relative to the dismissal of this action on note due August 1, 1940, the following: "January ...