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Hinton v. Hotchkiss

Supreme Court of Arizona

November 25, 1946

HINTON et al.
v.
HOTCHKISS et al

Appeal from Superior Court, Maricopa County; Howard C. Speakman, Judge.

Appeal dismissed.

F. L. Zimmerman, of Phoenix, for appellants.

Snell, Strouss & Wilmer, of Phoenix, for appellees.

La Prade, Judge. Stanford, C. J., and Morgan, J., concur.

OPINION

La Prade, Judge.

Page 750

This proceeding is being disposed of on appellees' motion to dismiss the appeal. The record shows that this action was instituted by appellees, plaintiffs below, to recover possession of certain real property in Maricopa County, Arizona, pursuant to the [65 Ariz. 111] provisions of the statutes relating to forcible entry and detainer and actions for rent. Art. 12, Ch. 27, A.C.A.1939. Defendants filed an answer and cross-complaint; plaintiffs thereupon moved to strike the cross-complaint upon the ground that a cross-complaint could not be properly interposed in an action of unlawful detainer. Plaintiffs also moved for judgment on the pleadings. Both motions were granted. Judgment was entered finding defendants guilty of unlawful detainer and decreeing that plaintiffs were entitled to possession, and defendants appeal.

Plaintiffs in their complaint alleged that they had leased the premises for a period of five years at a monthly rental of $ 125; and that, in connection with the lease agreement, they had also sold to defendants the restaurant business and equipment located on the premises together with an "on-sale" beer license and an "off-sale" package liquor license. They also alleged that the liquor licenses were to be transferred to the purchasers; that these licenses were to be retransferred at the expiration of the five-year term of the lease upon payment of a stipulated sum; that the purchase price was to be $ 6,000 cash; that defendants paid only $ 4,000 cash; that defendants had failed to pay the balance of the purchase price; that they had neglected and refused to pay two months rent; and, that defendants had closed and abandoned the premises and had subjected the liquor licenses to cancellation. The prayer of the complaint was that defendants be alleged guilty of forcible detainer. The statutory form of summons for forcible detainer was issued.

Defendants in their answer denied each and every allegation set forth in plaintiffs' complaint. They further defended upon the ground that the value of the stock of goods had been misrepresented; that plaintiffs had demanded that they execute a new and different agreement relating to the retransfer of the liquor licenses; that plaintiffs had fraudulently represented the character, value, and condition of the fixtures; that they had offered to rescind the sale; and, had tendered possession and demanded a refund of their purchase money and the rent theretofore paid.

By cross-complaint, defendants set up the foregoing matters contained in their answer, and alleged that the representations made to them with reference to the amount of business done, value of inventories, condition of premises, etc. were false and fraudulent and made for the purpose of deceiving them, and that they in fact had been deceived thereby. In their prayer for damages

Page 751

they asked that they be made whole; that the agreement and lease be cancelled; and for $ 2,000 damages.

The notice of appeal was "from the judgment rendered in said court * * * and from the whole thereof; and from that certain order made and entered in the above entitled cause * * * 'granting plaintiffs' motion to strike defendants' cross-claim and granting plaintiffs' motion [65 Ariz. 112] for judgment ...


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