R. D. McCAIN and Harriet F. McCain, Appellants,
Avery STEPHENS, Appellee.
[80 Ariz. 307] Daniel E. Moore, Bisbee, for appellants.
Lloyd C. Helm, Douglas, for appellee.
This is an appeal from a judgment in favor of Avery Stephens, plaintiff-appellee, and against R. D. McCain et ux., defendants-appellants, arising out of a cropper's lease agreement between R. D. McCain and one J. C. (Jim) Herron. The parties will be hereinafter referred to as plaintiff and defendants as they appeared in the trial court.
Plaintiff filed an action in the superior court of Cochise County against defendants seeking damages for a breach of the above-mentioned lease contract which he alleges was made for his benefit. Later an amended complaint was filed. Both complaints were verified. Defendants duly answered and later filed an amended answer. Neither of said answers were verified. On the date of trial plaintiff moved to strike both the amended and original answer upon [80 Ariz. 308] the ground that they were not verified. The grounds upon which it is claimed the answers should have been verified will more fully appear later. The court ordered both answers stricken for lack of verification and proceeded to trial of the case and at the close thereof entered judgment for plaintiff.
On the appeal here, defendants have presented three assignments of error which we will consider seriatum:
1. The court erred in granting plaintiff's motion to strike defendants' answers:
(a) On the ground plaintiff had asked equitable relief, section 21-412, A.C.A.1939;
(b) On the ground of defect of parties, section 21-430, subsec. 4, A.C.A. 1939.
By turning to section 21-412, supra, we find that it provides that where equitable relief is asked and the party praying for such relief shall make oath that the allegations of the complaint are true in substance and in fact, the answer of the opposing party shall be under oath, unless the oath is waived in the complaint and each material allegation not denied under oath shall be taken as confessed.
Plaintiff moved to strike the amended answer of defendants upon the grounds that (1) leave of court was not first obtained before filing it; and (2) that said amended answer was not verified as required under
the provisions of section 21-412, supra, and claimed that equitable relief was sought in this action. The court granted the motion upon the ground that the complaint sought equitable relief.
We connot agree with this view. The plaintiff alleged a breach of contract made for his benefit and that he had been damaged thereby in the sum of $6,400 as and for his interest in the crops planted on 80 acres of defendants' land and for $750 as and for labor performed and expenses incurred in preparing an additional 34 acres for planting. As we view it, the complaint is clearly one at law for damages and the fact that plaintiff, in the alternative asked for one-third of the crops in the event he was unable to collect the cash therefor does not have the effect of converting the cause of action into one in equity.
Plaintiff then moved to strike the original answer because it was not verified according to the provisions of section 21-430, supra, upon the grounds (1) that it denied the execution of the agreement alleged in paragraph three of the complaint to the effect that the contract between McCain and Herron was made for the benefit of plaintiff; and (2) that the action was not being prosecuted in the name of the real party in interest. The court granted this motion on the latter ground holding in substance that it was equivalent to subsection 4, section 21-430, supra, or that subsection 4 thereof was broad enough to encompass the defense that plaintiff was not the real party in interest. We must again look to [80 Ariz. 309] the statute, section 21-430, supra, to ascertain upon what appellants rely and we find that it provides among other things:
'An answer setting up any of the following matters, unless the truth of the pleading appear of record, ...