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Byrd v. Peterson

Supreme Court of Arizona

November 12, 1947

BYRD et al.
v.
PETERSON et al

Appeal from Superior Court, Pima County; John D. Lyons, Jr., Judge.

Judgment reversed and cause remanded with directions.

Fred W. Fickett, William S. Dunipace and Robert S. Tullar, all of Tucson, for appellants.

A. E. Butterfield and Gordon G. Aldrich, both of Tucson, for appellees.

Don T. Udall, Superior Judge. La Prade and Udall, JJ., concur. Stanford, C. J., having disqualified himself, Honorable Don T. Udall, Judge of the Superior Court of Navajo County, was called to sit in his stead.

OPINION

Don T. Udall, Superior Judge.

[66 Ariz. 254] The appellees, as plaintiffs in the lower court, brought an action of forcible detainer against appellants, as defendants in the lower court, to recover from them a portion of the building located at 128 North Church Street, Tucson, Arizona, consisting of three offices. The case was tried by the court without a jury.

A brief summary of the evidence discloses that on January 8, 1945, a lease was entered into between the appellees, as lessors,

Page 956

and A. E. Butterfield, as lessee, covering the aforesaid premises together with other property not herein concerned, for a period of one year; and thereafter on February 17, 1945, a second lease was entered into between these parties covering the same premises for a period of four years from and after January 9, 1946. Permission was granted Butterfield in both of the leases to sublet or assign the property. This he did on February 20, 1945, by subletting the three offices to the appellants under the firm name and style of Duquesne Mining Company for a period beginning March 1, 1945, and ending January 1, 1950. Among other recitals, the sublease contained the following provisions, to wit:

"* * * at the expiration or termination of this lease, or of the said two leases above described and referred to, whichever is the earlier in time, peaceable possession of said premises shall be given to the party of the first part * * *"

On or about November 9, 1945, the two leases between the appellees and Butterfield were terminated by mutual consent of the parties, but the appellants refused to terminate their sublease with Butterfield and deliver up possession of said premises.

As conclusions of law, the court found that the appellees are the owners in fee simple of said premises; that the voluntary termination of the two leases between the appellees and Butterfield, effective November 9, 1945, and the surrender thereof, [66 Ariz. 255] was binding upon the appellants as sublessees; that a partnership may not be sued by its firm name in Arizona and it is sufficient to sue the individuals composing the partnership; that direct relationship of landlord and tenant is not essential to support an action in forcible entry and detainer; that privity of contract between the parties is unnecessary in an action of this character, the right to possession being the only issue; that the appellants were guilty of forcible detainer. Judgment was duly entered against the appellants from which they prosecute this appeal.

In view of the ruling that is to be made in this case, it is only necessary to consider three of the many assignments of error, and they are treated in the following order: (1) In a forcible detainer action, does the Clerk of the Superior Court have authority to issue a summons requiring a defendant to appear and answer in less than twenty days from the time of service of the summons and complaint? (2) Where possession to property was originally obtained in a partnership name, should the partnership be included as a party defendant along with the persons composing the partnership, who are actually possessing it, in a forcible ...


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