Romero v. DeConcini McDonald Brammer

Full title: Richard R.A. ROMERO and Molly M. Romero, husband and wife, Appellants and…

Court: Court of Appeals of Arizona, Division Two

Date published: Mar 26, 1976

547 P.2d 506 (Ariz. Ct. App. 1976)

547 P.2d 506

Opinion

No. 2 CA-CIV 2021.

March 26, 1976.

From judgment of the Superior Court, Pima County, Cause No. 147872, Lee Garrett, J., awarding judgment of $12,571.60 for attorney fees, appeal was taken. Appellee cross-appealed from denial of its motion to set aside satisfaction of judgment on ground that satisfaction was entered by mistake. The Court of Appeals, Howard, C.J., held that evidence supported judgment awarding $12,571.60 for attorney fees; but that there was a failure of consideration for the satisfaction in any amount over the sum paid by appellants, and thus appellee was entitled to have satisfaction set aside.

Order affirmed, denial of motion vacated and case remanded with directions.

Clay G. Diamos, Tucson, for appellants and cross-appellees.

DeConcini McDonald Brammer Yetwin, P.C., by John W. Lovell, Tucson, for appellee and cross-appellant.

OPINION

HOWARD, Chief Judge.

Appellee was awarded judgment against the appellants in the sum of $12,571.60 for attorneys' fees. Appellants paid appellee the sum of $11,200 and a satisfaction of judgment was entered by appellee. In this appeal appellants contend that there was insufficient evidence to support the judgment in that there was no showing that they personally promised to pay the attorneys' fees.

Appellee cross-appeals, contending the trial court erred in denying its motion to set aside the satisfaction of judgment on the grounds that it was entered by mistake.

The testimony of Mr. McDonald fully supports the judgment of the trial court in favor of the appellee and against the Romeros.

After entry of the satisfaction of judgment, appellants filed a motion for new trial and appellee filed an opposition to the motion. Appellee also filed a motion to set aside its satisfaction of judgment on the grounds that it understood, when it entered satisfaction of judgment for a sum less than the total amount of judgment, that it was conditioned upon appellants' proceeding no further in any attempt to set aside the judgment or to appeal. This latter motion was unopposed. Appellee claims that the court erred in failing to grant this motion. We agree. There was a failure of consideration for satisfaction of the judgment in any amount over and above the $11,200. A satisfaction of a judgment without consideration as to the balance may be set aside pro tanto. Kelley v. Kelley, 290 S.W. 624 (Mo.App. 1927).

The order granting judgment in favor of appellee and against appellants is affirmed, the appellee's motion to set aside the satisfaction of judgment is vacated and the case is remanded with directions to enter an order setting aside the satisfaction of judgment for all sums over and above $11,200.

KRUCKER and HATHAWAY, JJ., concurring.