APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge.
Judgment reversed and case remanded with directions.
Mr. V. L. Hash, for Appellant.
Messrs. Struckmeyer & Struckmeyer, for Appellees Chris C. Black and Annabelle Black.
Ross, J. McAlister, C. J., and Stanford, J., concur.
Plaintiff, Judge Manor, brought this action against defendants Joe H. Barry, Payne Godfrey, [62 Ariz. 123] Chris C. Black and Annabelle Black for damages in the sum of $ 5,500 for personal injuries, and recovered a verdict and judgment for the sum of $ 1,800.
The complaint charges that the accident in which plaintiff was injured was the result of the joint and concurrent negligence of the Blacks and Payne Godfrey, agent of defendant Joe H. Barry, in operating on the public highway, on which plaintiff at the time was a pedestrian, their respective automobiles so that he, the plaintiff, was struck with great violence by the Godfrey automobile, and severely injured to his damage. The sufficiency of the complaint to state a cause of action against the defendants is not before us. Barry and Godfrey filed a joint answer denying the allegations of the complaint, and the Blacks filed an answer denying they were negligent, and alleging affirmatively that the plaintiff was injured by the sole negligence of Godfrey.
The case was tried in September, 1941, and a verdict returned for $ 1,800 against all of the defendants.
On October 1, 1941, the defendants Blacks' motion for judgment notwithstanding the verdict was denied, and plaintiff's motion for judgment in accordance with the jury's verdict was granted, the judgment being, "It is ordered, adjudged and decreed the plaintiff, Judge Manor, do have and recover judgment of and from the defendants Joe H. Barry, Payne Godfrey, Chris C. Black and Annabelle Black in the sum of eighteen hundred dollars, and for his costs herein incurred."
On October 10, 1941, the defendants Blacks moved the court to vacate the verdict of the jury, and also the judgment, their prayer being "that the judgment be vacated and set aside and judgment be entered for these defendants upon their motion made at the close [62 Ariz. 124] of all the evidence, or, in the alternative, that a new trial be granted to these defendants." On January 13, 1942, the motion for new trial was granted.
The new trial thereafter was not had, but was continued from time to time and finally set down for trial before a jury on March 24, 1943. Prior to that date, however, to-wit, on March 20, 1943, the Blacks' motion for summary judgment in their favor notwithstanding was granted.
This appeal by the plaintiff challenges the right of the court to grant a summary judgment in favor of the defendants Blacks. The statutes under which the court ruled the matter in favor of the Blacks are Sections 21-1211 and 21-1212 Arizona Code Annotated 1939, which provide for summary judgments in certain circumstances and conditions, and ...