[86 Ariz. 305] Finn, Gorey & Ely, Phoenix, for petitioner.
Langmade & Sullivan, Phoenix, for respondents.
In an original proceeding initiated in this Court, petitioner Harbel Oil Company sought writs of prohibition and mandamus directed against respondent, Honorable Henry S. Stevens, one of the judges of the superior court of Maricopa County. Alternative writs were granted to determine whether the proceedings being conducted by Judge Stevens in superior court cause No. 72982 are inconsistent with the decision of this Court in Harbel Oil Co. v. Steele (our No. 6155), reported in 83 Ariz. 181, 318 P.2d 359, 362.
The proceedings giving rise to this petition occurred on remand of the cause after the initial judgment of the trial court had been reversed by this Court in No. 6155, supra. A reading of that decision is essential to an understanding of the matter now before us. In brief, this Court determined that the trial court was in error in holding that a mortgage given by Harbel Oil Company to Steele and others--evidenced by various instruments--had been foreclosed so as to cut off the mortgagor's equity of redemption. We held that insofar as the mortgage was of an interest in real property it could be foreclosed only by court action, and insofar as the mortgaged property was personalty the foreclosure could only be by sale. Since neither of these requirements had been met, the mortgage was not foreclosed, and hence it was held the mortgagees were 'mortgagees in possession' subject to the mortgagor's equity of redemption. The cause was remanded to the superior court for 'proceedings not inconsistent' with our decision.
This cause has had a tempestuous voyage on the sea of litigation. The original complaint was filed on July 10, 1952, and prior to this proceeding some phase of the case has been before us on three different occasions. See, 80 Ariz. 368, 298 P.2d 789; 81 Ariz. 104, 301 P.2d 757; and 83 Ariz. 181, 318 P.2d 359. After seven years the end
is not in sight, for as yet there has been no final determination on the merits.
In a proceeding, such as this, on a petition for an extraordinary writ our only [86 Ariz. 306] concern is whether the inferior tribunal is acting or threatening to act in excess of its jurisdiction. If the lower court has jurisdiction, it is of no moment that it has erred in the exercise thereof, as such errors can be corrected on appeal. Bank of Arizona v. Superior Court, 30 Ariz. 72, 245 P. 366. Thus the question to be considered herein is simply whether respondent judge is exceeding the proper scope of inquiry on remand.
The instant petition asking for writs of prohibition and mandamus is lengthy and involved. The gist of the matter is petitioner's contention that the respondent court is exceeding its jurisdiction on remand by (1) allowing the defendant in the superior court to now file what is labelled a 'cross complaint' for foreclosure of the mortgage; (2) permitting the raising of certain affirmative defenses by the defendants which were not considered in the previous trial; and (3) failing to obey the mandate of this Court, which petitioner construes as limiting the proceeding below to the rendering of an accounting and restoring the subject mortgaged property to the petitioner.
In support of its position, petitioner raises many questions which are not within the proper scope of prohibition: i. e., whether the cross-complaint (in reality a counterclaim) is timely, whether the pleadings may be amended or supplemented on remand, whether stipulation of facts has precluded certain defenses, etc. These matters do not go to the jurisdiction of the trial court, and therefore any purported errors threatened therein are not now material. This Court will not issue an extraordinary writ to regulate the conduct of an inferior court which has jurisdiction. Bank of Arizona v. Superior Court, supra.
Petitioner does make two contentions which, if true, would be of jurisdictional significance. First, it is contended that respondent is inquiring into matters which were adjudicated and settled by this Court in the prior appeal (No. 6155, supra). If this position were correct, then respondent court would be exceeding its jurisdiction, since the decision of this Court on those issues actually determined on the previous review is the law of the case. In re Monaghan's Estate, 71 Ariz. 334, 227 P.2d 227. The trial court therefore would have no authority to reconsider those matters on remand. Second, petitioner insists that respondent judge refuses to obey the clear mandate of this Court, issued in conjunction with its decision. This position too, if true, would justify issuance of the extraordinary writs now sought, since the trial court's jurisdiction on remand is delimited by the terms of the mandate. Vargas v. Superior Court, 60 Ariz. 395, 138 P.2d 287. To resolve the issues now before us will require an analysis of the holding and the terms of the mandate in No. 6155, in order to determine whether there is any support therein for petitioner's contentions.
[86 Ariz. 307] I. Law of the case. It is petitioner's position that in the prior decision (No. 6155, supra) this Court disposed of all relevant questions of law which were raised or which might have been raised therein, and that therefore the trial court is without jurisdiction to hear those additional defenses now relied upon below. It is urged upon us that the effect of our decision was to dispose not only of the contention of the defendants-appellees in that case that the mortgage had been foreclosed, but also of the other affirmative defenses raised to the accounting and redemption, i. e., abandonment, estoppel, waiver, fraud, etc. This assertion is not borne out by the record. The original judgment of the trial court was based entirely upon the proposition that the various instruments constituted a mortgage of personalty and that such mortgage had been legally foreclosed. In announcing its opinion in that instance, the trial court expressly declared:
'In view of the court's conclusions the court has not considered other defenses which might be available to the
defendant under all of the facts which are presented in this case and the court expresses no ...