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Olds Bros. Lumber Co. v. Rushing

Supreme Court of Arizona

March 25, 1946

OLDS BROS. LUMBER CO.
v.
RUSHING et al

Appeal from Superior Court, Navajo County; W. E. Ferguson, Judge.

Orders reversed and case remanded to superior court to proceed pursuant to instructions.

P. H. Brooks, of Winslow, for appellant.

No appearance for appellees.

Thomas, Superior Judge. Stanford, C. J., and Morgan, J., concur. Judge Arthur T. La Prade, being disqualified, the Honorable Frank E. Thomas, Judge of the Superior Court of Cochise County, was called to sit in his stead.

OPINION

Thomas, Superior Judge.

Page 395

[64 Ariz. 201] As the appellant was the plaintiff in the lower court it is more convenient to refer to the parties hereafter as the plaintiff and defendants, respectively.

The plaintiff filed its action of forcible detainer in the Justice Court of Winslow No. 2 Precinct, County of Navajo, against the defendants C. A. Rushing and Emmett Sieck. It is alleged in its complaint it was the owner of certain described property in the City of Winslow, Arizona, and that the defendant Rushing had been a tenant at sufferance in said premises for quite some time; that, prior to the filing of the complaint, the plaintiff demanded that the defendant either vacate said premises or commence the payment of rent at Twenty Dollars ($ 20) per month, which the defendant promised and agreed to pay, but failed to carry out his promise in that regard, and concluded with a prayer for judgment for the possession of the premises. The defendant Sieck was joined as a party defendant for the reason that Rushing had permitted him to occupy a part of the premises.

Service was had upon the defendants and the defendant Rushing filed his answer claiming title to the premises by reason of his having purchased a certificate of redemption on the property from the Treasurer of Navajo County before the action was filed in the Justice Court, and denied generally the allegations in plaintiff's complaint of the relationship of landlord and tenant between the parties. At the same time he filed a Motion to Dismiss and a plea to the jurisdiction of the Justice Court on the grounds that the Justice Court had no jurisdiction to try and determine the issues in the action, making reference to Section 20-102 of the Arizona Code Annotated 1939.

The Justice of the Peace apparently overruled the defendant's motion to dismiss and his plea to the jurisdiction and tried the case, rendering judgment that the plaintiff was entitled to the possession of the property [64 Ariz. 202] in question and judgment for the rent for the period of time involved, which sum was less than the Two Hundred Dollars ($ 200) jurisdictional limit of the Justice of the Peace, and the defendant perfected an appeal to the Superior Court of Navajo County.

Upon the receipt of the papers in the Superior Court the plaintiff moved to set the case for trial and the defendant made a written demand for trial by jury and the

Page 396

case was set for trial before a jury. On the day of the trial in the Superior Court all parties appeared and were represented by their counsel and a jury was drawn to try the case. After the jurors were selected they were excused and the trial court, upon making an examination of the pleadings, raised the issue of jurisdiction of the Superior Court on the appeal, and dismissed the ...


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