Opinion
No. 6356.
June 4, 1957.
Appeal from the Superior Court of Cochise County, Frank E. Thomas, J.
Walton Walton, Phoenix, Norman Herring, Tucson, and W. Shelley Richey, Douglas, for appellant.
Wesley E. Polley, Phoenix, for appellee.
This is an appeal by defendant appellants Hope Mining and Milling Co., Inc. and Southwestern Mines, Inc., from an order denying a motion for summary judgment, and from a judgment rendered against them in the Superior Court of Cochise County (cause No. 16323), in favor of plaintiff-appellee John H. Betts, for the sum of $260,287.96, and ordering that the mortgage on certain lode mining claims be foreclosed.
Defendant-appellants urged on appeal that all issues herein are res judicata as between the same parties and their privies.
The parties have now filed a written stipulation in this court agreeing as follows:
"* * * Appellants have heretofore moved this Court submitting this matter for judgment and it appears that the appeal is well taken in that the rights of the Appellee herein have been heretofore adjudicated by a Court of competent jurisdiction, to-wit: in a certain Lien Foreclosure action being Cause No. 13555 in the Superior Court of Cochise County and in a certain action to Quiet Title being Cause No. 14456 in the Superior Court of Cochise County, * * *.
"Now, therefore, it is stipulated by the parties to the within appeal that this Court may find that the rights of the above-named Appellee and his privies above-named have been heretofore adjudicated in the above said Lien Foreclosure and Quiet Title actions; that the defense of res judicata as raised by the Defendants' Answer in Cause No. 16323 and on appeal herein constitutes a good defense, is a complete bar to the action which is on appeal and to the judgment from which this appeal is taken; that this Court may remand this cause to the Superior Court of Cochise County, with direction to enter judgment for the Defendant-Appellants in accordance with the terms of this Stipulation; that the supersedeas bond of the Appellants may be exonerated and for such other and further relief as may be justified."
The court so finds. Therefore, it is ordered that the judgment of the lower court be reversed and the cause remanded to the Superior Court of Cochise County, with directions to enter judgment in favor of the defendant-appellants, Hope Mining and Milling Co., Inc. and Southwestern Mines, Inc., in accordance with the above quoted stipulation.
UDALL, C.J., and WINDES, STRUCKMEYER and LA PRADE, JJ., concurring.