Andersen & Ray, Phoenix, for appellant.
W. T. Choisser, Phoenix, for appellee.
[78 Ariz. 293] The primary question presented on this appeal is whether the trial court properly granted a summary judgment in favor of appellee Olga I. Adams, who will be hereinafter referred to as defendant Adams.
The law is well settled that a summary judgment should never be entered unless the facts are clear and undisputed. If there is a controversy on a factual question, judgment should be withheld until proof has been made. Sligh v. Watson, 69 Ariz. 373, 384, 214 P.2d 123, 130. Rule 56 (c), Rules Civ.Proc. (now appearing as Section 21-1212, A.C.A.1939), provides in part:
'* * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'
In order to determine the appeal it is therefore necessary that we make a careful examination of the record consisting of the pleading and depositions before us, as there were no supporting or controverting affidavits or admissions on file.
Appellant, Phoenix Feed and Seed Co., Inc., a corporation, filed its complaint, naming as defendants Dan and Ida M. Wisner, husband and wife, and Olga I. Adams (Ida's mother). Simultaneously, a writ of attachment was levied upon the realty used as a chicken ranch, record title to which was in defendant Adams, her husband-not a party to the action-having disclaimed any interest therein. Thereafter defendant Ida M. Wisner passed away and a 'second amended complaint', naming Dan Wisner as administrator of her estate, was filed. Defendant Adams filed no answer to the complaint, nor did she attack by a motion to dismiss the sufficiency of the complaint-or any cause of action therein-to state a claim for relief against her. The only document filed by her was a motion for summary judgment in which she also asked that the writ of attachment be quashed. Previously taken depositions of C. M. Tuttle, president of the plaintiff corporation, and of defendants Dan Wisner and Olga I. Adams were relied upon to support such motion.
Analysis of the Complaint
Insofar as defendant Adams is concerned the complaint sets forth two causes of action, the first consisting of two counts. The first count alleges that defendants Dan and Ida Wisner, husband and wife, and Olga Adams, jointly operated a business for the purpose of raising chickens on jointly owned premises at 1704 W. Shangri La Road, Phoenix (hereinafter referred to as the Shangri La property), and alleges a sum of $3,358.65 due on an open account for various poultry, feed, and supplies purchased by 'defendants Dan and Ida M. Wisner and Olga I. Adams, acting for and on behalf of themselves and each other.'
[78 Ariz. 294] The second count alleges that plaintiff, as an accommodation, guaranteed payments to the bank on certain notes of defendants executed by 'Dan and Ida Wisner, acting for and on their own behalf, and defendant Olga I. Adams', and that it has been required to pay a sum of $8,619.71 thereon. It is further alleged that simultaneously with the execution of these notes, plaintiff and defendants Wisner entered into conditional sales contracts for the sums of the notes and that defendants have not performed their obligations thereunder. The prayer is for a money judgment for the amounts above set forth, with interest and costs.
The second cause of action makes appropriate reference to the indebtedness stated in the first cause of action, and further alleges that defendant Adams purchased the Shangri La property on which the chicken ranch was located but that this purchase was made on behalf of defendants Wisner, who own a beneficial interest therein, defendant Adams being trustee. It further alleges that defendants Wisner have made improvements upon these premises in the sum of $30,000, using proceeds from the sale of chickens, which proceeds under the terms of the conditional sales contracts were required to be paid to plaintiff.
The relief prayed is that the beneficial interest of the Wisners and the amount of proceeds from the sale of chickens invested in improvements be determined; that plaintiffs be awarded an equitable interest in the attached property to this extent. In the event this be denied it is prayed in the alternative that the aggregate sum of $11,978.36 stated in the first cause of action be adjudged an equitable lien on the property.
Analysis of the Depositions
The three depositions before the court present a very sketchy picture of the dealings between the parties, wholly insufficient upon which to safely predicate any firm ...