*1 the entire specifi After a careful remaining two examination Defendant’s opinion that error for record is our error it was considered cations of are his motion for the trial court impartial given defendant a fair argument closing trial in view of new juryA guaranteed trial as law. un allegedly prosecution which was murder peers him of a brutal convicted improper stated as facts in that it fair and prescribed pay the for which he must now affirmatively proved, which were matters penalty. im rebuttal for
brought out on the state’s Judgment affirmed. This, main peachment purposes only. it is PRADE, LA J., WINDES, C. prejudice and tained, manifest resulted in n PHELPS, STRUCKMEYER, JJ., con imрartial trial. him fair and denied to curring. carefully argu- We have most read and find ments of counsel for the state many impeach-
in a few instances —not —
ment was treat- evidence as to certain facts
ed
though
had been substan-
facts
tively
Admittedly the
established.
mony given of a defense witness NIX, Association, Banking a National present stand at the trial. instant Appellee. object case defense counsel did not at No. 6058. improper time to the im- use made of this Supreme Court of Arizona. closing peaching evidence in the state’s Feb. 1956. arguments jury. The mаtter raised here for the re- first time. As we Rehearing Denied March cently Boozer, held in the case of State 786, 789, 80 Ariz. 291 P.2d wherein the collated,
Arizona and other authorities are object
“Failure argument of counsel
for the state right constitutes a waiver of
to have it Incidentally, reviewed.” we have
examined the motion for new trial and the
reasons appear now advanced do not there-
in.
13á
“VIII lawful own- “That the is the promissory note er and holder of mortgage securing the same action; in this cause of scribed due, unpaid there is now owing and Wing- from the defendant foot on said California Homes Co. principal mortgage note and sum of $2,275.92 together with interest on the $2,282.59 principal sum of rate at the O. Phoenix, Leslie Mallamo, Herbert per per De- cent annum from appellant. Parry, counsel, for Phoenix, of 1, 1953, cember to the date of the fil- Robinette, complaint, of this togethеr with Gust, Rosenfeld, & Divelbess principal $2,- interest on the sum of Phoenix, appellee. 275.92 at the per per rate cent of 4*4 annum from the date of PHELPS, Justice. *3 complaint paid, together until with grant- order appeal This is an plaintiff’s the sum of for attor- $150.00 summary judgment ing a motion for fees, neys’ together action in an plaintiff fаvor below suit.” costs of interest principal, brought to recover mort- and attorneys’ 37 notes and fees on Paragraph IV of defendants’ answer to sepa- a constitutes gages, each of which each cause of action allegations “denies the provides note Each rate cause of action. Paragraphs contained VII and VIII.” brought thereon be that should suit Thereafter filed a motion for incurred pay all costs agrees to
maker granted which was rea- including thereof in the collection upon the basis that there genuine was no attorneys’ fees. sonable any issue of material fact. The court cause of each VII and VIII Paragraphs granted recovery on the notes in full in- as are follows: of action $100 cluding attorneys’ fees on each of the 37 causes of action and decreed fore- “VII closure. is rea- the sum of a “That $150.00 assignment predi- Defendants’ of error is plain- allowed to the sum to be
sonable question: cated one Was attorneys’ gen- fees tiff as and uine fact before the action, issue of court as to and that the same this cause attorneys’ what constituted fees mortgage is aforesaid. secured it sum pregnant in that admitted granting of the at time in this case A sum. so, summary than was a reasonable less summary $150 If judgment? may an admission negative judgment improperly granted. was in- which that form of denial be defined as the denial defendants’ contention implication favorable an affirmative the volves complaint placed Paragraph VII of rule is that adversary. that de- so attorneys’ fees issue matter оf since put evidence were fendants entitled affirmative, it cannot implies an matter tried subject
on the
and have
denial,
a gen-
in a
because
found
by plain-
contended
an issue
was
of fact.
puts
every averment
eral denial
in issue
constituted
tiff that defendants’
required
complaint
which a
and
admission
pregnant with an
prove
of action
to sustain his cause
fact on the
issue of
did not raise
21-405,
8(b),
cluding jurisdiction. Rule
reasonableness
of the
the defendant
A.C.A.1939. But where
fees.
merely
damage is the
denies that a debt or
admit
A
wherein defendants
plaintiff it is an
precise
alleged
sum
allegations
allege
and
certain stated
damage in a
value, debt or
admission of the
knowledge
are
or information
without
v. Home Owners’
Potter
lesser amount.
truth of
belief as to the
to form a
sufficient
P.2d
Ariz.
Corporation, 50
Loan
other
generally
allegations,
certain
429;
Dorton,
Cal.App.2d
Armer
qualified
constitutes
allegations,
123P.2d 94.
Practice 2d
Federal
Moorе’s
denial.
Denial,
8.23,
footnote
General
section
the attor
present
In instance'
admitted
present
defendants
case
neys’
sought
fees
to be recovered
$150
V, al
Paragraphs
through
allegations
The an
of action.
in each of the causes
knowledge
informa
leged insufficient
and de
allegations
swеr admitted certain
truth of
as to the
a belief
tion
nied other
equivalent
VI
Paragraph
attorneys’ fees
allegation concerning
VIII
denial;
VII and
Paragraphs
denied
of the com
Paragraph
is found
or in
knowledge
alleged insufficient
plaint.
specificallydenied Par
The answer
to the truth
belief
to form
formation
interpreted
only be
*4
agraph VII. This can
IX, X
Paragraphs
in
allegations
the
of
mean that
denied
to
defendants
$150
XI.
each
attorneys’
in
a
fee
was
reasonable
of
for the services rendered for
cause
action
argument
this, plaintiff’s
was
To
plaintiff. By employing
use
a
the
the
of
reasonable
that the
this
Paragraph
denial as
to
VII
of
in each cause
attorneys’ fees
of
value
complaint
not
the
does
invest
of
the
$150,
constituted
action
pleading.
of the defendants in
such
legal effects of
any of the
they
only
denial is that
effect of the
which, as
complaint
the entire
to
not reason-
contend thаt the
of
every
sum $150
stated,
construed
above
fairly
the
meet
able. Such a denial does not
The case of
allegation in the
141,
complaint
the
substance of the
P.
averment
Kennedy, 22 Ariz.
Herr v.
attorneys’
If was
relating to
fees.
And
this case.
“on all fours’’
is almost
deny
that the sum
fendants’ intention to
in Eads
Commercial
was cited
thаt case
Bank,
was an unreasonable fee
order
A.L. $150
266 P.
33 Ariz.
Nat.
there-
Hanson,
on
reasonableness
an issue
Stoudt v.
also
R. 183. See
them,
of it was
as above
incumbent on
422,
graph concur. complaint meet does not 8(b), supra, Rule requirements of UDALL, (dissenting). Justice material that: insofar as here provides my view that an issue of fact was “ * * * fairly meet raised as shаll Denials reasonableness of attorney’s fees unqualified denied. defendant’s of the averments the substance denial of the faith pleader good Paragraph intends VII of When complaint qualification hence, my only part opinion, deny a sum- mary averment, specify judgment much he so as to shall feature shоuld shall have been I material and not entered. as is true do not of it construe ”* portion answer being the remainder. an eva- pleading, for pleader sive see it the deny that an Defendants did in good tended faith thereby create would be than amount less $150 fee in some issue. rendered. fee for the services a reasonable as the have indicated Inasmuch a denial would sustains In fact of the lower part action court in good granting faith on a lack of a sum- its face *5 fact, por- (or mary judgment, neg- the basis that the terial and the denial issues negative ative) spoken “pregnant is a as with ad- tion of answer to more mission pregnant, it would seem advisable of the material issues.” fully term: define such recognize year in the 1921 this A pleading.
“Negative Pregnant. In court, Kennedy, supra, in Herr v. committed implying an affirmative negative also “negative pregnant us to the doctrine”. * * * ex- negative a form of Such principle This was adhered into the Eаds carry imply within pression may as and Potter cases which are in the cited it an *. affirmative. majority opinion. However a careful ex- “A a denial in ‘negative pregnant’ is amination of these decisions will show the admission, form, but is in fact by answers therein challenged were includes where the in haec verba denial verbis, ip nial in sis e., using very i. usually place, which are the time and words of the pleadings * * *Black’s Law immaterial. examples those cases were of a true “nega- Edition, page 1229. Dictionary, Third pregnant”, tive but such is not the situation unqualified in the instant case where an pregnant is such negative “A paragraph VII was inter- may сarry expression as aof posed. im- or at least it an affirmative kind favorable plication of some As to other by two cases relied * * *” C.J.S., party. adverse from foreign ju- come Pleading, 151. § risdictions, I have these comments. The pregnant is mere- The doctrine Armer v. Dorton case was decided in Cali- generаl rule application of the ly specific Appeal, fornia District Court of dilatory pleadings are de- District, evasive Fourth whereas the Second Dis- up plaintiff sets a cer- if a Thus fective. Proud, trict Court in the case of Reinert v. pleading and defend- hypothesis Cal.App.2d tain directly 47 P.2d held used, in- words is the same contrary. ant denies appears that this con- qualifying facts inconsequential and cluding yet flict has not resolved the Su- the answer is con- complaint, then preme Court of California. In the Stoudt the reason defend- evasive Montana, sidered case from the reasonable attor- denying logically just as may ney аctually ant fee issue jury, went to the pri- qualifying facts as inconsequential since witness was uncontradicted punish Therefore to ones. material mary or as to the sum testified to as reasonable the evasiveness, doctrine states that jury court therefore directed the to return traversing plaintiff. a verdict that amount will be considered for the certainly admitting authority the immaterial and ma- for the grant- para- designated by reason of aof expressly au- Furthermore, as was here done graphs the Mon- negative pregnant. as au- Rules of Civil 8(b) thorized rule our to other cases tribunal referred tana 21-405, (Formerly having denials Procedure. Sec. A.C.A. thority holding 1939.) Why pleading call the defendant’s “similar in effect” to *6 qualified general The and then refuse 205 P. denial Mont. issue. 255.] [62 part apparently general not care- to treat the thereof as had denial however court every citations, for in such? fully read its own by in a denial the answer was case it cited here, Specifically the defendant’s denial stands case Thus the Stoudt
ipsis verbis. every paragraph of this traversed each and contrary to the is holding, in alone allegation expressed implied plaintiff’s or authority the doctrine behind reason pleading. Thus it traversed and raised negative pregnant. оf attorney’s any issue whether fees at all majority opinion were due. The treats this opinion concedes that analysis upon an indication bad faith found in a negative pregnant cannot be part pleader. the of the The answer to this complaint. denial to an entire general broad put plaintiff is thаt defendant wished to the they there indubitably true. Where This is proof aof reasonable fee. He ad- err, opinion, my is their deci after nothing paragraph traversed, mitted of the they qual part of term a the what sion that the any neither fact that this or other sum the alle denial which denies general ified is reasonаble. This answer is a denial operates in paragraphs of certain gations precise alleged of “the sum by plaintiff”, the general than a denial. fashion some other is, rather, but sum raised by defendant that if had to concede They seem the it Therefore should not be complaint, the whole no generally denied construed to admit anything. Yet where would exist. pregnant created effect is same precisely the protest strongly I holding, the advanced specific allegations of a the of all denial majority, that it upon was incumbent eyes they to said effect shut paragraph to admit that defendant such servicеs “were I as defective. sub the and treat sum in worth whatever their judgment con- whereby nega reasoning no same mit the stituted reasonable fees”. It will in a de be found can tive day when sad defendants are forced complaint applies to the whole the nial of * answer to by their “state the paragraph herein, amount considered to be denial. Reinert v. aas operated of the maximum value there- Foster, Cal.App. Edger of”, day will be the supra; for that Proud, when the proof in a burden civil be noted classic should case P.2d 580, 120 2d ably pointed lifted and shifted to de- “It has out that simple fendant act of a com- doctrine оf is over- ; plaint put upon for a refined in most sum due. To defend- cases the intended * * * At meaning clear. ant burden of his answer- most it admission eyes seem that pleading shut would denial should be is to one’s subject to a very purpose adversary pleading as we motion more def- pursuant inite statement Rule today. it know 12(e).” agree pleading I do not Since negative pregnant, constitutes See, Ladd, Brown, Vestal and Cases for us now there is no occasion I view Pleading Materials and Procedure approve disapprove of doc- either pp. (1953), 285-287. majority’s me It. seems trine. kept It should be mind that in the spirit harmony with the not in ruling is stant cаse we are with a dealing claim pleading is a survival of code but modern relief containing separate counts. rules days when the contest the aggregate asking for an judgments important than based more attorney’s $5,500. fee trial court impression was of rights. substantive the face as to adopted Federal Arizоna when paragraph VII, without hear- *7 away hair- getting we Rules evidence, “plucked a word of has ap- pleadings, but in the matter splitting figure out of thin air” plaintiff, and said to is to the case. parently such is you attorney’s “I will allow fee in the in monu- Professor Moore be noted sum of I cannot $3700.” subscribe to such Practicе, 2nd (Moore’s Federal work mental action, my opinion as in there was an issue preserving very 2) critical of Ed., Vol. fact to be determined. doctrine.” “negative pregnant archaic pointed in a footnote under out tendency I believe that of courts : 8.24, page 1683 section be to liberalize pleadings should with an end doctrine “The having tried on cases merits. For the common law doctrine foregoing reasons all would reverse many the fictions that, together judgment and send matter back abrogated been law has common See, issue a trial alone. Rules simple statute, plain by our 56(d). Procedure, A.C.A.1939, rule of Civil language based construction 21-1213. § understanding has sense common substituted.” STRUCKMEYER, J., concurs in this statement. Professor agree I' say: dissent. toon goes Moore