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Catalina Groves, Inc. v. Oliver

Supreme Court of Arizona

October 29, 1951

CATALINA GROVES, Inc.
v.
OLIVER

Affirmed.

Scruggs & Butterfield, of Tucson, for appellant.

Glenn Ginn, of Tucson, for appellee.

De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.

OPINION

De Concini, Justice.

Page 1023

[73 Ariz. 39] This suit is an action to establish liability on a lease concerning real property. The plaintiff Call, who owned the premises, leased to Oliver, the appellee herein. Oliver assigned his lease to Catalina Groves, Inc., appellant herein, who in turn assigned to one Levin. Levin defaulted in his rent. Call sued all the parties but service of process was had only upon the parties to this appeal. Judgment was rendered in favor of Call against Oliver and Catalina Groves, Inc. Oliver cross-claimed against Catalina Groves, Inc. (hereinafter called Catalina), asking that if he be found liable to Call, that Catalina be held liable over to him for any such amount. Judgment was awarded in his favor against Catalina. [73 Ariz. 40] Oliver paid Call. This appeal is by Catalina who seeks to have the judgment of Oliver set aside.

Oliver paid Call his judgment so the latter has no interest in this appeal. Oliver submitted his case "on the facts contained in the abstract of record heretofore filed by the appellant (Catalina)." Therefore we have before us only the opening brief of Catalina, the appellant.

The matter was submitted to the trial court on the pleadings, with the stipulation that the parties admitted all the allegations in the pleadings but not the legal conclusions therein.

The details of the transactions were as follows: Call leased a certain store to Oliver for a period of three years, from February 1, 1947 through January 31, 1950. The pertinent portions of that lease are set out as follows:

"4. That Lessee will not assign this lease, nor sublet the whole or any portion of said premises, without the written consent of Lessor first had and obtained, the consent to one assignment or subletting shall not be deemed a consent to future assignment, or subletting, but every assignment or subletting whether by the Lessee or any assignee or sublessee shall be void and of no effect unless the written consent of Lessor shall be first had and obtained.

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