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Schaefer v. Duhame

Supreme Court of Arizona

May 26, 1947

SCHAEFER et ux.
v.
DUHAME

Appeal from Superior Court, Maricopa County; W. C. Truman, Judge.

Motion granted and judgment affirmed.

Armstrong & Spector, of Phoenix, for appellants.

Cunningham & Carson, of Phoenix, for appellee.

Stanford, Chief Justice. LaPrade and Udall, JJ., concurring.

OPINION

Stanford, Chief Justice.

Page 629

[65 Ariz. 386] Action was brought in the trial court by appellee, hereinafter called plaintiff, for $ 10,729.74 claimed due him by defendants (appellants) and to foreclose a mechanic's lien against defendants' real property. Notice and claim of lien had been previously filed. Plaintiff alleged in the complaint that on or about February 1, 1945, the plaintiff and defendants entered into an oral contract for the construction of a dwelling house and garage upon a certain portion of Ashby Acres near Phoenix; that [65 Ariz. 387] said contract provided for the payment by defendants to plaintiff of the cost of labor and materials plus five per cent additional for overhead and small tool rental, and plus ten per cent additional for profit.

Defendants' answer admitted entering into the oral contract, but alleged that it was for cost plus ten per cent for profit, but that the cost of the buildings was not to exceed $ 7,000, and then alleged that the actual cost of the labor and material going into said structure, plus ten per cent, did not exceed $ 7,000.

The jury in this case rendered its verdict in favor of the plaintiff in the sum of $ 9,325. Defendants thereupon appealed to this court from the judgment entered on said verdict.

After the defendants filed their opening brief, the plaintiff filed with his answering brief a motion to dismiss in two parts which we should first consider.

First he contends: "* * * that the reporter's transcript herein was never filed in the office of the Clerk of the Superior Court as required by Section 22-202 Arizona Code Annotated 1939, and that such transcript was never presented to the trial judge or approved by him or presented to him for approval or correction as required by Paragraph 22-204 Arizona Code Annotated 1939 and in fact was never certified by him as required by Paragraph 22-209 Arizona Code Annotated 1939 and was never in the possession of the Clerk of the Superior Court and was not forwarded to this Court by the said Clerk as required by Paragraph 21-1825 Arizona Code Annotated 1939."

Section 21-1831, A.C.A.1939, is as follows: "The Supreme Court, or any judge thereof may, for good cause shown, enlarge the time within which any of the things provided in this chapter (article) may be done, but the time for taking an appeal shall not be extended."

There was filed in this court on September 12, 1946, by the defendants an application for enlargement of time within which to file reporter's transcript. The copy filed herein has an acknowledgment for the receipt of same by the attorneys for plaintiff dated September 12, 1946. On September 16, 1946, this court granted the application. At the time the application was granted although the notice for the hearing on same was designated in the notice served on the attorneys, aforesaid, as Monday, September 16, 1946, at the hour of 10 a. m., no one representing the plaintiff appeared causing this court at that time to extend the time by the following minute entry: "On affidavit of counsel for good cause shown ordered that the time for filing the reporter's transcript in the above styled case be extended to and including October 1, 1946." Accompanying the application for notice to extend ...


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