114 P. 560 | Ariz. | 1911
The action here involved is one in ejectment brought by Santiago Ainsa, administrator with the will annexed of the estate of Frank Ely, deceased, the appellee, against the appellants, to recover possession of certain lands in Santa Cruz county known as'the San Jose de Sonoita grant, and for the rents, issues and profits thereof. Judgment was entered in favor of the appellee and against the appellants, except Don A. Sanford, Jr., as to whom the action was dismissed, for possession, and as against the appellants Etta L. Sanford and Emil S. McKee for $1,600 damages, and. costs. From the order denying a motion for new trial, this appeal is prosecuted.
The appellants assign as error the overruling of their motion to strike from the complaint paragraph 3 thereof. The allegations of this paragraph are, in substance, that on the twenty-fourth day of June, 1887, one Frank Ely, appellee’s testator, filed his complaint in the district court of the first judicial district of the territory of Arizona, in and for Pima county, against one Don Sanford and others, praying that his title to the lands involved in the present action be quieted; that on said day he duly filed notice of Us pendens; that the said Sanford appeared and answered; that upon the twenty-eighth day of September, 1907, judgment was rendered in favor of the appellee, theretofore substituted as plaintiff, quieting said title in said appellee as against said Sanford; that the defendants and each of them are asserting and claim
But the appellants urge that the motion should have been granted for the reason that the complaint on its face disclosed that the district court of Pima county had no jurisdiction to render the judgment pleaded, for the reason that section 10 of Act No. 44 of the Session Laws of the 20th Legislative Assembly, 1899, creating out of the county of Pima the county of Santa Cruz, and providing for á transfer of actions to the district court in and for the county of Santa Cruz, devested the said court of Pima county of jurisdiction.
Section 10 provides: “All actions of whatever kind or nature, now pending in the district . . . court of Pima county, where the subject matter or property in controversy in said action is situated within the limits of the new county of Santa C'ruz, shall be transferred to the proper courts of said county of Santa Cruz for trial, . . . and it is hereby made the duty of the respective' clerks ... of the county of Pima, ... to transmit to the clerks of the corresponding courts in said county of Santa Cruz, all papers and files in said action, . . . where the title to real estate is not involved, and in all actions pending in said courts in said county of Pima, wherein one of the parties is a resident of said county of Santa Cruz, both parties consenting thereto. ... It ... is hereby made the duty of the clerks of the said respective courts ... to transmit to the clerk of the proper court of Santa Cruz county, all papers and pleadings in said action: . . . Provided, however, that in all civil actions it shall not be the duty of such clerk to make such copy or transmit such papers until his fees and compensation allowed therefor by this act, shall have been paid or tendered him, nor until all costs due such clerk and the sheriff of said county of Pima, up to the time of the transfer, have been duly paid by the parties thereto or by one of them. In all actions transferred under the provisions of this act, upon the receipt by the clerk of the proper court of Santa Cruz county of such papers and pleadings and such certified copies of the record in such action or actions so transferred, the court to which' the same is transferred shall acquire and become vested with the same jurisdiction as if the
This section is directory. The district court of Pima county retains jurisdiction of actions commenced therein until the provisions of this section have been fully complied with. Then, and then only, does jurisdiction vest in the courts of Santa Cruz county and cease to exist in the courts of Pima county. There are no facts alleged in paragraph 3 which disclose that the district court of the county of Santa Cruz ever acquired jurisdiction; hence the district court of Pima, county had authority to hear and determine the cause and enter the judgment pleaded. The motion of the appellants to strike paragraph 3 of the complaint was properly overruled.
The second assignment of error is that the court erred in overruling the general demurrer to the complaint. An examination of the complaint discloses that it contains the necessary allegations under our statute to constitute a sufficient complaint in ejectment. The general demurrer was properly overruled.
The remaining assignments of error are as follows: That, the court erred in overruling the defendants’ motion for judgment in their favor at the conclusion of all the testimony offered by the plaintiff; that the court erred in overruling defendants’ motion for new trial and in arrest of judgment, enumerated and defined in folios 87 to 91, inclusive, of the abstract of record in this case; that the court erred in permitting and accepting incompetent and irrelevant evidence,, documentary and oral, offered by the plaintiff in'this case. These assignments are too general to present any question for review. Liberty Mining & Smelting Co. v. Geddes, 11 Ariz. 54, 90 Pac. 332. It further appears that a consideration of these assignments requires an investigation of the evidence introduced on the trial, which is not printed in the abstract, of record. We have repeatedly held that, where the abstract, of record fails to contain the evidence, we will not examine the original transcript of the reporter’s notes for the purpose of ascertaining’ whether error exists. Subdivision 6, rule 1 (8 Ariz. v, 71 Pac. vi); Liberty Mining & Smelting Co. v. Geddes, supra; Daniel v. Gallagher, 11 Ariz. 151, 89 Pac. 412;
The errors here considered are those assigned in the brief of appellants filed on the ninth day of November, 1910. To this brief the appellee replied. Subsequently and upon the thirteenth day of January, 1911, five days after the opening of the term at which the ease was argued and submitted, the appellants filed a supplemental brief, in which two additional grounds of error are assigned. This brief was filed without leave of the court, and to it no reply has been made by the appellee. The practice of filing such supplemental brief and therein assigning additional error is not contemplated by the statutes, nor by the rules of this court. We therefore do not consider the' assignments thus alleged.
No error appearing upon the record as presented, the judgment of the trial court is affirmed.
KENT, C. J., and CAMPBELL and DOE, JJ., concur.
