CHRISTENSEN et ux.
PRYOR et al.
[75 Ariz. 261] Darrell R. Parker, of Phoenix, for appellants.
Struckmeyer & Struckmeyer, of Phoenix, for appellee Commercial Standard Ins. Co.
A. B. Spector and Foster G. Mori, of Phoenix, for appellees C. A. Saylor, Gregg R. Irvine, and National Surety Corp.
[75 Ariz. 262] LA PRADE, Justice.
Before taking up the issues made by the assignments we will consider a motion to dismiss the appeal this is incorporated in the appellees' answering brief. The motion is upon the ground that appellants failed to file with their designation of the record on appeal a concise statement of the points on which they intended to rely on appeal, not having brought up the complete record (Transcript of Evidence omitted). Citing Rule 75(d), Sec. 21-1822, A.C.A.1939. This case was submitted for disposition without oral argument. Counsel for appellees with their motion filed an answering brief addressed to the issues made by the assignments and appellants' opening brief. Our attention to the existence of this motion came when we started to study the briefs. It is argued that the failure to file statement of points constitutes grounds for the dismissal of the appeal within the holding of this court, in Davis v. Kleindienst, 64 Ariz. 67, 165 P.2d 995, 996. In this last-named case the appellant filed only a notice of appeal. Within the time prescribed for transmitting a record on appeal the appellant had not filed a designation of the contents of the record required on appeal, nor had he filed a concise statement of the points upon which he intended to rely on appeal. This being the state of the record counsel undoubtedly concluded that he had no record on appeal which could be reviewed. A second notice of appeal was timely filed. On this second notice of appeal counsel caused a sufficient record on appeal to be transmitted. It was on the state of the record before the second notice of appeal was filed that we observed that
'* * * Counsel for appellant, being aware of the fact that he had not filed a designation and not having served a concise statement of the points on which he intended to rely on appeal, in compliance with Rule 75(d), Section 21-1822, Id., realized that there would be no review of the judgment in this court.'
We do not think that the case is susceptible of being interpreted as holding that a failure to comply with Rule 75(d), requiring a concise statement of points intended to be relied upon on appeal, where the complete record of all the proceedings and evidence is not transmitted, requires a dismissal of the appeal.
'This requirement is imposed in order to give the appellee notice of the grounds upon which the appellant will seek reversal or modification, in order that the appellee may determine whether the proposed record gives a fair and complete picture of the issues to be pressed by the appellant, and if the appellee determines that the proposed record does not, he may then require additional portions of the record, proceedings and evidence to be included by serving and filing his designation for such additional portions pursuant to [75 Ariz. 263] Federal Rule 75(a).' 1951 Cum.Supp. Moore's Federal Practice, Sec. 75.06.
A failure to comply with this rule is not ground for dismissal of appeal where the statement was not needed to apprise appellee, or the court, of the points that would have to be met, and the absence of such statement caused no prejudice. Adams v. New York, Chicago & St. Louis R. Co., 7 Cir., 1941, 121 F.2d 808; Ashton v. Town of Deerfield Beach, 5 Cir., 1946, 155 F.2d 40. Appellees do not contend that they are prejudiced or in anywise handicapped by an incomplete record.
We call to attention the fact that this motion was not timely filed. Our rules require that
'All motions to dismiss shall be presented under separate cover and a copy thereof together with copies of the moving papers shall be served with the notice of the motion.' Rule VII, Subdivision 5, Rules of the Supreme Court. (Emphasis supplied.)
If the failure to file a concise statement of points to be relied upon on appeal handicaps or prejudices a party, he should call such failure to the attention of the trial court or appellate court, and cause a sufficient record to be presented on appeal so that the matter may be disposed of upon its merits. The purpose of the rule requiring motions to dismiss to be presented under separate cover is to insure that the motion will be promptly called to the attention of this court. A ruling can thus be had prior to any undertaking to answer on the merits.
Appellants, plaintiffs below, are here prosecuting their appeal from the judgment of the trial court giving judgment to appellees (defendants) after proofs were submitted by all the parties. Plaintiffs sought to recover damages against defendants Saylor and Irvine, copartners, conducting a real estate business as licensed real estate brokers, on the ground that they, as sellers, had been defrauded by the defendants through the conduct of one W. C. Pryor, a real estate salesman employed in their office, and growing out of a sale of plaintiffs' property which it alleged was being handled for them by Saylor and Irvine through the attention and services of Pryor. Plaintiffs' claim was for $11,000, representing $1000 commission paid to Pryor and $10,000 secret profit received by Pryor on the sale and not disclosed. Pryor absconded with the $11,000, and although named as a party defendant no service was had upon him.
From the written findings of fact it appears that at the times here under consideration Saylor and Irvine had in their employ one Charles M. Baldwin, a licensed real estate salesman, whose duty is was in part to secure 'listings and prospective listings of real estate available for sale'. In this capacity Baldwin contacted plaintiffs and advised them who he was and that he appeared for Saylor and Irvine. On this occasion Baldwin learned from plaintiffs that they had two pieces of property for [75 Ariz. 264] sale, an auto court on Van Buren Street and a trailer court on North Central Avenue, both in Phoenix. Baldwin, on returning to the office, turned over to Irvine the information he had secured concerning the Van Buren Street property and to Pryor the details relating to the tailer court, and 'requested W. C. Pryor to go out and look at the Central Avenue property, which he subsequently did'. Neither listing was in writing. The asking price for the trailer court was $50,000.
Later Pryor advised plaintiffs that he had a prospective purchaser for the trailer court in the person of one Dr. W. E. Balsinger, of Los Angeles, who would not pay the price of $50,000. He advised them that he could not sell the property for more than $40,000 and counselled them to accept that sum. Plaintiffs, not knowing that these representations were false, and believing the same to be true and relying thereon, agreed to sell for $40,000. Plaintiffs signed a preliminary sales agreement to that effect, although no named purchaser was designated. At this very moment Dr. Balsinger had already indicated to Pryor that he would purchase the property for $50,000, and the deal was finally consummated with him for that figure. Pryor advised plaintiffs that he had secured a purchaser for $40,000, and they signed a sales agreement to one 'W. Clinton, single' for said amount. Plaintiffs' acknowledgment to this agreement was taken by notary Carl L. Gerard, while
'* * * the said Gregg R. Irvine, in his capacity as a Notary Public, and in furtherance of the business conducted by himself and the defendant C. A. Saylor, did, on January 31, 1947, issue under his hand and seal an acknowledgment of the purported execution by W. Clinton, a single man, of the contract of sale (and quitclaim deed) of the real property involved. * * *' (Findings 28 and 29.)
Presumably, the quitclaim deed, purportedly executed by Clinton, was to Dr. Balsinger, the real purchaser. Appellees admit in their brief that 'W. Clinton' was a fictitious name adopted by Pryor and representing himself, 'the better to practice his fraud upon the unsuspecting plaintiffs'. This admission supplements the somewhat equivocal statements in findings 28 and 29, supra, and compels us to infer that there was no such person as 'W. Clinton', though the court found that Irvine, as a notary public, in taking the acknowledgement of the purported execution of the contract of sale and quitclaim deed, now admitted not to have occurred, was done 'in furtherance of the business conducted by himself, Irvine, and the defendant C. A. Saylor'. (Emphasis supplied.)
Additional findings were that Saylor and Irvine had no actual knowledge of any of the representations made by Pryor to plaintiffs, and that plaintiffs had not relied on Irvine's acts as notary public in taking the acknowledgments of 'W. Clinton'.
[75 Ariz. 265] By written conclusions of law the court, among other things, concluded:
'II. That the sub-agent W. C. Pryor was employed in this transaction by the authority of the principals, (plaintiffs) express or implied; that the sub-agent was the agent of the principals and ...