Cole v. Bean

1 Ariz. 364

• Court: Arizona Supreme Court
• Decided: January 15, 1877
• Status: Published

Opinion

By the Court,

French, C. J.:

Neither the judgment nor decree in this case can be sustained under the pleadings. The plaintiff by his complaint asks that a certain deed from plaintiff to Mary M. Bean, wife of Curtis C. Bean, be canceled and held for naught, on the grounds that he was incapacitated at the time of its execution, and that the execution of the same was procured by fraud and conspiracy, and asks also an injunction against defendants Bean and his wife pending the action.

The answer does not properly deny some of the allegations of the complaint. But no objection to any of these imperfect denials appears to have been taken by the plaintiff, and evidence was introduced by plaintiff in support of the allegations of the complaint in the same manner and to the same extent as would have been done if all the denials in the answer had been perfect. At the close of plaintiff’s testimony, defendant moved for a nonsuit, which the court denied. There was no error in this denial. The motion for nonsuit was frivolous. The testimony first introduced by plaintiff in support of his complaint was strictly and entirely correspondent to its allegations, and tended strongly to support the same, making a formidable 'prima facie showing in the case. But afterwards the evidence takes another and different line, not included in the issues, or responsive to the allegations of the complaint. There must be substantial correspondence between the allegations and the evidence. But throwing all the evidence, with the objections to the same, out of the record in this case, the incompatibility of the pleadings with the findings and decree still confronts us.

It was not necessary for a reversal that the evidence and the voluminous transcript in this case should have been brought up. If the pleadings, findings, and decree only had been brought here, a reversal must have resulted. Even on the judgment roll alone the error fully appears. The complaint does not support the decree. In the findings and decree, the instrument sought to be set aside by plaintiff’s complaint is found to be a mortgage executed to a married woman, the wife of Bean, to secure indebtedness to other persons or parties.

Leaving out of view all questions of the conformity of the pleadings to the case made by the evidence, the pleadings, findings, and decree in this case are not only inconsistent with the issues made by the pleadings, but are also inconsistent with each other; and viewing the findings and decree separately and without any relation of the one to the other, each of them is inconsistent with itself. On page 116 of the transcript, the complaint in the case and also the deed from plaintiff to Mrs. Bean are both made a part of the findings, as follows: “Which said complaint and said exhibit [the deed above mentioned] is made a part of the findings herein and a part hereof.” This is entirely inconsistent with the findings of the judge in the case.

It is a part of the duty of attorneys to see that the findings are within the issues, and that the judgment or decree be supported by both the pleadings and the findings. This seems to have been either overlooked or entirely lost sight of for the time being by the learned counsel of respondent in the latter part of the proceeding in the court below. The learned judge of that court seems to have been intent on doing no injustice to any party, but substantial justice to all. The decree was not drawn in accordance with the findings, although expressly ordered by him at the close of his findings to be so made. The cause has been ably argued on both sides at the bar of this court, especially so on the part of respondent; but on the grounds stated above, the findings must be set aside, and the judgment and decree reversed and cause remanded for a new trial, and it has been ■.so ordered.

The associate justices concurred.