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McCarrell v. State ex rel. Morrison

Supreme Court of Arizona

November 23, 1960

C. A. McCARRELL, a single man, Spencer Balcomb and Donna Balcomb, his wife, Appellants,
STATE of Arizona ex rel. Robert MORRISON, Attorney General, Appellees.

Page 140

Earl Platt, St. Johns, for appellants.

Robert Morrison, former Atty. Gen., Wade Church, present Atty. Gen., Leslie C. Hardy, Chief Asst. Atty. Gen., James A. Yankee, Sp. Asst. Atty. Gen., for appellees.

PHELPS, Justice.

This case came to us on appeal from a judgment of the superior court of Apache County. Appellants will be hereinafter designated as defendants and appellees as plaintiffs.

The facts are that in 1934 the Arizona State Highway Department leased a small tract of land from one Spencer Balcomb, Sr., located at Sanders, Arizona, several miles east of Holbrook, Apache County, alongside the Santa Fe Railroad right of way. It occupied said land as lessee using it for a highway maintenance camp until 1944. The State of Arizona by and through the Highway Department then purchased said land together with an additional area adjacent thereto making a total of approximately five acres. The State Highway Department has placed improvements on said [88 Ariz. 396] land of the approximate value of $10,000. Some of these improvements were placed upon the leased property prior to 1944 and some afterwards. The Highway Department has been at all times and is now in possession thereof.

The land was purchased by plaintiff in 1944 from R. G. Lewis and Bertha Lee Lewis, his wife, and R. P. Degraftenreid and Hattie Helen Degraftenreid, his wife, who on May 5, 1944 executed a warranty deed to the State describing said property by metes and bounds. The deed made no reference to any governmental surveys except to state that it was a part of the northeast quarter of the southeast quarter and the northwest quarter of the southeast quarter of Section 14, Township 21 north, Range 28 East G&SRB&M in Apache County, Arizona. It also described it as lying northerly and adjacent to the A T & S F Railroad right of way.

Defendants at least as early as 1949 notified the Highway Department that a portion of the land occupied by it and described in the above-named deed, belonged to them and from time to time until January 1954 sought an adjustment with the Highway Department relating thereto. Finally, on February 1, 1954, upon advice of the deputy Attorney General assigned to the Highway Department, the State Highway Commission by a vote of 3 to 1 decided no adjustment would be made with defendants. The minute entry of the Commission shows that its decision was based upon the advice of the deputy Attorney General to the effect that clear title to the property in controversy was in the State. Commissioner Calhoun was absent and Commissioner Scott, chairman of the Commission, cast the negative vote on the motion presented. On the same date chairman Scott wrote a letter to defendant McCarrell advising him of the action taken by the Commission. Mr. Platt testified that he received the same information by telephone and upon request later received a copy of the minutes of the Commission from Scott recording the action taken by it relating to the area in dispute. This action, in effect, definitely terminated all negotiations looking toward a settlement

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of the title dispute concerning said land occupied by plaintiff.

Thereafter these defendants brought an action against the State to quiet title to the area in controversy. At the time of filing their quiet title action service of process was made upon the Attorney General. Upon receiving the same that office, through one of its deputies, referred the matter to the State Land Department who informed the Attorney General that the State had no interest in the land involved. The deputy thereupon on April 19, for some reason, advised the county attorney of Apache County, in substance, that the State Land Department had advised the Attorney General's office there was no state land involved in the land described in the complaint and [88 Ariz. 397] asked him to appear and answer for the State. A copy of this letter was sent to Platt and Greer, counsel for McCarrell and Balcomb. Apache County was not a party to the litigation and the county attorney did not file an answer for the State. Just why the deputy Attorney General did not notify the State Highway Department instead of the State Land Department was not explained, perhaps because it was inexplainable. The complaint itself alleged that the land was owned by the State and occupied by the State Highway Department. On May 7, 1954, default was entered against the State and on June 7, 1954, defendants put on their evidence in a trial before the judge sitting without a jury. At the close of the trial judgment was entered quieting title in McCarrell and Balcomb.

Before entering default against the State, Mr. Platt made a trip to Show Low around the first week in May to see chairman Scott who resided there. He went to see him about this matter and other business. He told Scott about the letter from the Attorney General stating that according to advice from the State Land Department the State had no interest in the land involved in the quiet title action. He told Scott he was surprised and informed him that the time was up or about up for filing an answer. He further told Scott they were in no hurry to take judgment and that no default had been taken but that his clients were interested in doing some building on the property. He stated Scott seemed a little puzzled and said maybe the Attorney General had decided they did not have a case. After they finished their other business he returned to St. Johns. Mr. Platt testified he heard nothing further from anyone.

The Highway Commission had no actual official knowledge that the quiet title action had been filed against the State involving the property in controversy in this case until January 31, 1955. On that date, Mr. Platt, attorney for McCarrell and Balcomb, wrote the Commission that he had taken a judgment against the State on the previous June 7 and asked if it would be necessary for him to procure a writ of restitution in order to get possession. He also stated in that letter that the Commission was at liberty to remove three residence buildings located on the property if it was done in time to not interfere with the building program of McCarrell and Balcomb. The State did not accept this offer but instead appealed from said judgment.

The appeal was based upon the ground that the service upon the Attorney General was not a valid service upon the State. In our opinion handed down April 17, 1956, in the case of State v. McCarrell, 80 Ariz. 240, 295 P.2d 1086, we held that the service of process in that case was properly served upon the Attorney General under the provisions of Section 27-1041 A.C.A.1939 (now A.R.S. § 12-1101), and affirmed the judgment of the trial court.

[88 Ariz. 398] On May 21, 1955, the plaintiff State of Arizona ex rel. Robert Morrison, Attorney General, filed the instant cause of action against McCarrell and Balcomb alleging, among other things, that their counsel, Mr. Platt, had been guilty of extrinsic fraud in procuring the judgment by default by concealing from the trial judge the fact that the State Highway Commission had advised his clients that they claimed to have a clear ...

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