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Palmer v. Apperson

Supreme Court of Arizona

May 4, 1950

PALMER et ux.
v.
APPERSON

Judgment affirmed.

Terrence A. Carson, of Phoenix, for appellants.

Stahl & Murphy, of Phoenix, for appellees.

Phelps, Justice. La Prade, C. J., and Udall, Stanford and DeConcini, JJ., concurring.

OPINION

Phelps, Justice.

[70 Ariz. 36] Cecil H. Apperson, doing business as Apperson Construction Company, plaintiff, brought this action against Ralph E. Palmer and Bernice Palmer, defendants therein, on an oral contract in which plaintiff had agreed to construct a trailer court for defendants on property owned by them. The complaint alleged that a labor and materialmen's claim of lien against said property had been filed in the office of the county recorder of Maricopa County and prayed for judgment for a sum certain against defendants, declaring it to be a lien against defendants' property and for a foreclosure of said lien. The First Federal Savings & Loan Association was joined as a party defendant because of certain mortgages held by it against defendants' property here involved upon which no issue is presented for our consideration.

Plaintiff went to trial before a jury on the original complaint, the pertinent allegations of which will be hereinafter related.

Defendants, answering the complaint, denied the material allegations thereof and in addition thereto filed a cross-complaint setting forth their version of the oral contract between plaintiffs and defendants and alleging a breach thereof and prayed for damages in the sum of $ 3,037.83 against plaintiff. An answer was filed by plaintiff to the cross-complaint and upon the issues

Page 1021

thus formed the cause proceeded to trial.

At the close of plaintiff's case he presented a motion to amend his complaint to conform with the evidence produced by him. The court overruled defendants' objection thereto and permitted the filing of the amended complaint. The defendants then proceeded to put on their testimony and at the conclusion of the trial the jury returned a verdict in favor of plaintiff on his complaint in the sum of $ 3,706.62, and a verdict in favor of defendants on their cross-complaint in the sum of $ 501. Thereupon the court ordered the entry of a money judgment only in favor of plaintiff and against defendants for the sum of $ 3,205.62. The labor and materialmen's claim for a lien was held void and of no effect. From this judgment and the order of the trial court denying defendants' motion for a new trial, defendants prosecute this appeal.

[70 Ariz. 37] Defendants presented several assignments of error but asserted both in their briefs and in their argument to this court that these assignments resolve themselves into one proposition of law, viz., "That it was error for the court to permit the plaintiff to file and (an) amended complaint and change his theory of the case and to set up a new cause of action."

Let us examine the original and the amended complaint and by comparison ascertain whether defendants' contentions are well founded. The ...


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