STEEL et ux.
NATIONAL SURETY CORP. OF NEW YORK et al
Reversed with directions.
Udall & Udall, of Tucson, for appellants.
Krucker, Evans & Kemper, of Tucson, for appellee National Surety Corp. of New York.
Stanford, Justice. Phelps, De Concini, and La Prade, JJ., and Lorna E. Lockwood, Superior Court Judge, concurring. Note: Chief Justice LEVI S. UDALL, having disqualified himself, Superior Court Judge LORNA E. LOCKWOOD, of Maricopa County, was called to sit in his stead.
[74 Ariz. 194] This is an appeal from an order dismissing appellants' complaint for failure to state a claim upon which relief can be granted. The facts of the case are essentially as follows:
On November 22, 1950, appellants, Frank W. Steel, Jr., and wife, recovered a money judgment in the Superior Court of Pima County against one Dudley A. Dobry, a real estate broker. The action arose out of fraudulent representations made by Dobry to appellants in April of 1948. This action was filed in March of 1951 against appellee, National Surety Corporation of New York, as surety on Dobry's real estate broker's bond. Appellee moved to dismiss the complaint for failure to state a claim on the theory that the action was barred by the one-year statute of limitations. The lower court granted the motion to dismiss and this appeal followed.
Appellants present one assignment of error which we shall quote:
"The trial court erred in ordering Appellants' complaint dismissed, which order was based on the holding that the cause of action stated was barred by the one-year statute of limitations (Section 29-201, A.C.A. 1939), for the reason that the statute of limitations applicable to Appellants' action is the six-year statute (Section 29-205, A.C.A. 1939) and for the further reason that in any event the action was filed within one-year from the time of its accrual."
The first issue for our determination is whether the liability of the surety on a real estate broker's bond is a "liability created by statute" and thereby subject to the one-year statute of limitations.
This court defined "liability created by statute" in the case of Griffen v. Cole, 60 Ariz. 83, 131 P.2d 989, 991, from which we quote:
"The term 'liability created by statute' has been construed many times and the courts define it as a liability that comes into being solely by statute and as having no existence prior to the enactment creating it, * * *".
The precise question for our determination, therefore, is whether the real estate broker's bond in ...