Volume 24 — Arizona Reports

<p>Appeal and Error — On Reversal op Judgment, Notwithstanding Verdict, Judgment Properly Directed on the Verdict. — On reversal of a judgment for defendant, notwithstanding the verdict for want of proper parties plaintiff, on the ground that a motion to substitute other parties as plaintiff should have been granted and an amendment of the complaint accordingly allowed, thereby placing the case in the same position existing before judgment was rendered, the court properly directed judgment for the substituted plaintiffs on the verdict, as, at law, judgment follows the verdict as a matter of course.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. E. C. Stanford, Judge.</p>

Samuel L. Páttee, Judge. STATEMENT OF FACTS. The appellant, as plaintiff, having on June 30, 1920, obtained a judgment in the superior court of Pima county, Arizona, for $12,500 against Fabian Romero, as defendant, on August 25, 1920, in said action, made in proper form, application for writ of garnishment against the Consolidated National Bank of Tucson and the Security Bank & Trust Company of Tucson, among others.

J. S. Jenckes, Judge. STATEMENT OE FACTS. The plaintiff, Whisler, sued C. A. Orr alleging his cause of action as follows: That Edgar Orr on August 26, 1920, gave plaintiff his note for $385 and on October 15, 1920, was indebted to plaintiff in the sum of $260 with interest and attorneys’ fees; that the defendant agreed to pay the debt of Edgar Orr, and to take the promise out of the statute of frauds, and for the purpose of showing consideration, further alleged: “And that…

<p>1. Municipal Corporations — In Absence of Statute, Presentation of Claim for Damages from Tort, Required bv Ordinance, is not Condition Precedent to Action.- — The presentation to the city council, as required -by a city ordinance, of a claim for damages sustained by reason of a tort committed by the municipality, is not a condition precedent to an action for damages, in the absence of any statute or provision of the general laws under which the city was incorporated.</p> <p>2. Trial — Instruction Held Erroneous as Tending to Lead the Jury to Believe That Defense was Immaterial. — In an action against a municipality for injury to property, an instruction that, if defendant was negligent in the construction of eulverts in making them too small for carrying the waters that might be expected to flow down the wash, and if the city was so negligent, it would -be “immaterial” whether or not buildings clogged the culvert, held, though correct as an abstract principle of law, ground for reversal, as tending to mislead and emphasize as “immaterial” defendant’s principal defense.</p> <p>3. Trial — A Requested Instruction, Though Defective, may Require the Giving of a Correct Instruction. — An instruction requested by defendant, though defective in form, may be sufficient to require the court to give correct instruction on the issue involved.</p> <p>4. Damages — Measure of Damages for Injury to Improvements is Cost of Restoration Where Restoration Possible. — The proper measure of damages for the destruction or injury of buildings, fences and like improvements, which may at once be replaced, where the exact cost of restoring the property is capable of definite ascertainment, there being no damage to the realty itself, is the cost, not exceeding the diminution in value of the property, of restoring or replacing sueh property, with compensation for the loss or impairment of its use during the reasonable time necessary to make such repairs.</p> <p>5. Damages — Measure of Damages for Irreparable Injury to Real Property is Depreciation in Market Value. — Where the injury to improvements on land is of such a character as to be irremediable except at great cost, or where the property cannot be restored to its former condition, the measure of damages is the depreciation in the market value of the entire property, or the cash value if there is no market value, by reason of the injury.</p> <p>6. Damages — To Prove Depreciation, Cost op Repairs and of Condition op Property Before and After Reparable Injury Admissible. — Where in measuring damages for a reparable injury to property it is sought to arrive at the depreciation of the property after the injury, it is proper to admit evidence of the cost of repairs and of the condition of the property before and after the injury, as relevant to prove depreciation in value.</p>