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cuts, mines,

" does not mean work John C. Gung'l, of Willcox, and Ben Mathaway from quarry, open pit, open cut, or ews, of Tucson, for appellee R. G. Lewis mine, entirely different in character and Hardware Co. completely outside of the zone of dangers Ellinwood & Ross and John E. Sanders, peculiar to quarrying stone, or making an all of Bisbee, for appellee Hood. open cut or open pit, or extracting ores from J. T. Kingsbury, of Tombstone, for appelthe bowels of the earth. If plaintiff is en- | lee Lewis. titled to recover, then the teamster hauling timber or groceries to the mine, if injured by runaway team, or the clerk in the commis ROSS, J. This action was brought to de sary upon whose toe a box should fall, would termine who is entitled to the sheriff's deed be entitled to recover.

to some mines and mining property sold We are satisfied “about,” in the context under execution, and is between judgment in which it is used, was intended to mean lien creditors, to wit, R. G. Lewis Hardware work of the general character done or car- Company, a corporation, and Circle A Cattle ried on in the danger zone incident to op- Company, corporation. Besides these erating a mine. It is a broader word than corporations R. G. Lewis, the assignee of the "in,” but not broad enough to reach work purchaser at the sale, and J. E. Hood, sher. unrelated to mining in proximity or chariff of Cochise county, are made parties. The acter It covers work that subjects the property was sold on January 10, 1922, workmen to the dangers incident to a mine, under an execution issued on a judgment for but not work away from the mine and any $1,849.21 entered July 9, 1921, in favor of of the dangers or hazards incident thereto. | H. A. Loudermilk, receiver, against the Gold It is obvious that the work plaintiff was Prince Mining & Milling Company, and engaged in at the time he was hurt did not bought in by the judgment creditor for bring him into the range of any of the pe- | $1,608. The sheriff's certificate of sale under culiar dangers and hazards incident to op- the Loudermilk judgment and execution was erating a mine, and that therefore he is assigned to R. G. Lewis, who was the owner pot entitled to recover in this action.

and holder of said certificate during all the The judgment of the lower court is re- times herein and entitled to the redemption versed, and the cause remanded, with di- money or a deed if not redeemed. rections that the complaint be dismissed. On November 23, 1921, I. N. McAvog ob

tained a judgment against the Gold Prince

Mining & Milling Company for $11,015, which
MCALISTER, C. J., and LYMAN, J., con-on said date (less a credit of $2,944.10) was

assigned to the hardware company. On Feb-
ruary 23, 1922, the cattle company. obtained
a judgment against the Gold Prince Mining

& Milling Company for $125,000. On March CIRCLE A CATTLE CO. v. R. J. LEWIS 1, 1922, the hardware company obtained a HARDWARE CO. et al. (No. 2172.)

judgment against the Gold Prince Mining & (Supreme Court of Arizona. Dec. 10, 1924.) judgments were docketed in the lien docket

Milling Company for $12,423.68. All these Execution Om 296Subsequent lienorse redeem

of the superior court of Cochise county, and Ing from execution sale of judgment debtor's became liens against the mines and mining property held not required to pay penalty im- property of the judgment debtor in the posed on redeeming debtor.

order above given. Under Civ. Code 1913, pars. 1374, 1376, and There is no question about the rights of particularly 1379, judgment creditors or sub- the above-named judgment creditors to resequent lienors redeeming from prior execution deem from the sale of January 10, 1922, and sale of debtor's property are not required to there is no question but that their priorities pay 8 per cent. penalty in addition to sale

are in the order above given; the McAvog price, which by that section is imposed on redeeming judgment debtor.

heing the senior judgment lien and the others

following, Circle A Cattle Company, and then Appeal from Superior Court, Cochise the R. G. Lewis Hardware Company. County; Albert M. Sames, Judge.

The sole question is whether the hardware Artion between the Circle A Cattle Com- company, assignee of the McAvoy judgment

lien, did those things the law makes requipany and the R. G. Lewis Ilardware Com- site and necessary to entitle it to redeem. pany, R. G. Lewis individually, and others. Judgment for R. G. Lewis, and the Cattle that the hardware company did not tender

It is the contention of the cattle company Company appeals. Reversed, with direc

or pay to the sheriff the amount of money tions.

required under the law, and consequently Francis M. Hartman, of Tucson, for appel- lost its right to redeem. Paragraph 1379, lant.

Civil Code 1913, provides:
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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(230 P.) "In redeeming property sold the judgment, only the sale price, and, if the owner of subdebtor shall pay the amount for which the prop-sequent lien, then such amount plus the erty was sold, together with eight per cent. added thereto; and each subsequent redemptioner amount of lien of the one or ones who may

have theretofore redeemed the same. Parshall pay the amount for which the property was sold, plus the amount of the lien thereon agraph 1376, Civil Code. In other words, of the one or ones who may have redeemed the | cach creditor is made whole. He gets the disame theretofore."

amount of his lien and any additional sum

he may have been compelled to pay to reAs above stated, the property sold for

deem. $1,608. The amount paid the sheriff by the

The cattle company, in order to redeem, hardware company for redemption

should have paid or tendered the sheriff $1,690. The appellant cattle company claims the purchase price of the property at the exthat the latter sum was insufficient, and con

ecution sale and in addition thereto the strues paragraph 1379 as meaning that the amount of the judgment lien held by the judgment redemptioner should have added hardware company as assignee of McAvoy. 8 per cent to the $1,608 and paid to the Its tender or payment to the sheriff was litsheriff $1,736.64. The trial court took the tle in excess of the purchase price under the same view, and held that the hardware Loudermilk execution, and was far short of company had not redeemed, since the sum

the necessary amount under the law. paid the sheriff was not “the amount for

The judgment of the trial court should which the property was sold together with 8 have been in favor of the hardware company, per cent. added thereto.” The court also held since the unquestioned evidence is that it that the cattle company had not brought it

was the assignee of the senior judgment lien self within the law so as to be entitled to and had paid in to the sheriff an amount in redeem, leaving it as though no one had

excess of the price for which the property tried to redeem. The court accordingly held that R. G. Lewis, the assignee of the purchas- had sold, and had done everything the law

required to entitle it to redeem. er, was entitled to a deed of the property,

We accordingly reverse sa id judgment, and and directed the sheriff to give him such send the case back, with directions that deed. The cattle company appealed from

judgment be entered directing the sheriff this judgment.

of Cochise county to pay redemption money We think the court did not get the meaning to R. G. Lewis, and to execute and deliver of paragraph 1379, supra, and it is appar- to the R. G. Lewis Hardware Company a ent from the briefs of counsel on both sides deed of said property, in the manner and that the correct meaning of such paragraph form prescribed by law. was not discovered and called to the court's attention, for in such briefs both proceed on the theory that a redemptioner must pay,

MCALISTER, C. J., and LYMAN, J., connot only the amount for which the property sold, but in addition 8 per cent. thereof in order to redeem. In the oral argument one of the counsel admitted as much, and frank- SUMID v. CITY OF PRESCOTT. (No. 2220.) ly stated that upon reflection and investigation he had become satisfied the case was

(Supreme Court of Arizona. Dec. 10, 1924.) tried upon the wrong theory, and gave to Municipal corporations @733(4)-Municipalus the benefit of his conviction with which ity operating waterworks held liable as "cor. we are so well satisfied that we adopt it as poration” for injury to employé. the proper interpretation of the statute. Municipal corporation engaged in construct. The statute needs no construction. It speaks ing a tunnel connecting underground water for itself and in no uncertain way.

main with city reservoir, as authorized by It

Const. art. 13, § 5, and Laws 1921, c. 31, held plainly states that in redeeming the proper- liable under Employers' Liability Law, as emty sold the judgment debtor shall pay the ploying “corporation” within Civ. Code 1913, amount for which the property was sold par. 3154, for an injury sustained by one enand 8 per cent, added thereto. A judgment gaged in hazardous work within paragraph debtor and his successor in interest may 3156, subd. 9. under the statute redeem, but they are not (Ed. Note.-For other definitions, see Words the

redemptioners. Paragraph and Phrases, First and Second Series, Corpo1374, Civil Code. The law, for some reason,

has placed them in a different class. One
reason, at least, is made manifest in para-

Appeal from Superior Court, Yavapai Coun-
graph 1379, wherein the judgment debtor ty; John J. Sweeney, Judge.
in redeeming the property sold is burdened Action by Richard Sumid against the City
with a penalty of 8 per cent. in addition to of Prescott. From a judgment sustaining a
sale price, whereas a redemptioner, if the demurrer, plaintiff appeals. Reversed and
owner of the senior lien, is required to pay remanded.

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O'Sullivan & Morgan, of Prescott, for ap- , scribed while working for an individual, or pellant,

a partnership, or a private corporation, his A. H. Gale, City Atty., of Prescott (Le Roy employer, such employé's injury not having Anderson and George W. Nilsson, both of been caused by his own negligence, would Prescott, of counsel), for appellee.

obviously be liable in damages.

The question is, Does the word “corporaROSS, J. The plaintiff, who is the appel

tion” include a municipal corporation as well lant here, seeks by his complaint to recover

as a private corporation ? Every dictate of from the defendant city damages for person- tion in the affirmative, especially when the

policy and reason would answer this ques. al injuries suffered while he was engaged as an employé in constructing a tunnel connect- enterprise is one of a private or business naing an underground water main with the city ture. The underlying purpose and aim of the reservoir, in which the defendant's water Employers' Liability Law was to protect the supply is stored for delivery to its inhabi: employé, or his dependents, from personal

injury losses sustained in hazardous occupatants. The complaint sets forth that defendant owns its waterworks system, and at the tions, hy shifting such losses to the public

as added cost of production. If a municipaltime of the injury, and for a number of years ity enter the field of private industry and prior thereto, had been operating it, selling enterprise, it can care for such losses as well and delivering water to consumers for pay;

as an individual, or an association of indithat the work plaintiff was doing was neces. viduals, or a private corporation could by sary and hazardous. He bases his right of adding the losses to the cost of production. recovery on the Employers' Liability Law To exempt it from such liability while impos(chapter 6, title 14, Civil Code 1913), claiming ing liability upon others engaged in the inthat his injury was due to a condition or dustry would give a municipality an unfair conditions of his occupation.

and discriminatory advantage over its comThe defendant's demurrer raised the point

petitors, should there be any. that it was not liable under such law for two

The right of action under the Employers' reasons: (1) That the Employers' Liability Liability Law is radically different from the Law does not provide for a liability in favor common-law right of action for negligence. of an employé as against his employer when Instead of restricting the common-law right, such employer is a municipal corporation; and (2) in no event should defendant be lait introduces into our law a policy of liabil

ity extending and enlarging that right. TO ble because the work in which plaintiff was construe the statutory actfon as unavailable injured was being carried on by it in its to an employe of a municipality engaged in political or governmental capacity. The court

private enterprise would be a denial of a sustained the demurrer and entered judg

right analogous to the common-law right of ment of dismissal.

recovery for negligence. Under the common The question for decision is purely one of

law a municipal corporation exercising prolaw, and depends upon the meaning to be

prietary or business powers was regarded ascribed to the word "corporation,” as used

quo ad hoc a private corporation, and was in describing those employers liable to pay liable to the same extent and on the same damages under the Employers' Liability Law.

principles as a private corporation. 28 Cyc. The statute (paragraph 3154), makes "any 1287; 4 Dillon, Munic. Corp. (5th Ed.) ${ employer, whether individual, association, or

1631, 1670; Lloyd v. Mayor, 5 N. Y. (1 Selcorporation" liable to an employé (when his den) 369, 55 Am. Dec. 347; Safety Insulated injury is not caused by his own negligence) Wire & Cable Co. v. Mayor of Baltimore, 66 in those occupations declared and determin- F. 140. 13 C. C. A. 375; City of Henderson ed in paragraph 3156 to be hazardous, among v. Young, 119 Ky. 224, 83 S. W. 583; Illinois which is mentioned, “(9) All work in the con- Trust & Sav. Bank v. City of Arkansas City, struction and repair of tunnels, subways and 76 F. 271, 22 C. C. A. 171, 34 L. R. A. 518; viaducts.

The limitation in the statute is Keever v. Mankato, 113 Minn. 55, 129 N. W. in the character of the employment and not 158, 775, 33 L R. A. (N. S.) 339, Ann. Cas. in the character of the employer. The oc

1912A, 216. In the latter case it is said: cupation in which the injury or death occurs must be one of those declared and deter “When a municipality engages in a private mined to be hazardous, and, that desideratum enterprise for profit, it should have the same being satisfied, the liability would seem to rights and be subject to the same liabilities as

priyate corporations or individuals." follow, whether the employer be a natural person, or an association of natural persons, The construction contended for is not in or a corporation. The facts and circum- harmony with the spirit or purpose of the stances set out in the complaint clearly con- law. It would be establishing a rule more stitute a cause of action under the Employ- restrictive than the common-law rule in analers' Liability Law against any and every em- ogous cases, and it would discriminate be. ployer, unless it be a municipal corporation. tween employers of labor in the same occuIn other words, if the plaintiff had been pations under the same or similar circumhurt in the circumstances and manner de stances.

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(230 P.) The word "corporation,” in a context some- | poration by virtue of a franchise from said what similar in Lord Campbell's Act, has municipal corporation." This constitutional been construed to include municipal corpora- right has been recognized and provided for tions. Lord Campbell's Act, in some form or by the Legislature. Chapter 31, Laws 1921. other, has been adopted by most every state Given a free hand to operate where any perin the union. Before it was en ted no rightson, firm, or corporation may, consistency as of action existed for wrongful death. It well as public policy ought to impose upon created a right of action, and our court has municipalities the same duties and obligadecided that it was a new action, purely stat- tions as are imposed upon persons, firms, or utory. Jennings v. Lister, 22 Ariz, 185, 195 corporations. P. 1113. It provides that,

The appellee, however, contends that this

court in Morrell v. City of Phenix, 16 Ariz. "The person who, or the corporation which, 511, 147 P. 732, decided the identical queswould have been liable if death had not ensued, tions, and held that “the word 'corporation,' shall be liable to an action for damages.

wherever used in

article 18 [Con" Paragraph 3372, Civil Code 1913.

stitution], entitled 'Labor,' has reference to This particular language is common to private corporations, and not to cities or most of the adaptations of Lord Campbell's the Morrell Case. However, in that case the

towns." The quoted language was used in Act. In Murphy v. Board of Chosen Freehold- from the question we here have. In the Mor

question before the court was very different ers, 57 N. J. LAW, 245, 31 A. 229, it was con- rell Case the city claimed that its charter tended that the word "corporations," in a

exempted it from liability for damages on context like our paragraph 3372, did not in-account of injuries sustained growing out of clude municipal corporations. That court de- the malfeasance, 'misfeasance, or neglect of cided that it comprehended municipal cor- duty of its officers or other authorities. Morporations, and uses this language in that con- rell was injured, while sprinkling the streets nection:

of the city, by an unruly, fractious and un“Besides, the word 'corporations,' in its gen- / manageable team of horses that had been eral and ordinary sense, embraces both public furnished him by the city authorities. The and private corporations, and there is nothing exemption claimed by the city was expressly in the language or spirit of the statute which provided for by its charter. The holding was narrows or restricts this general meaning and that the charter provisions were valid and confines it to any one class of corporations. The act is intended to give a right of action the claim of the city in that regard tenable. against persons or corporations against whom a The sweeping statement that the word "corliability existed if death had not ensued, and in poration," wherever it occurred in article 18 the absence of any language in the act which of the Constitution, had reference to private either expressly or impliedly excludes public corporations and not cities or towns, was not corporations, it would, upon principle, be clear necessary to the decision of the case. If a that they were intended to be and are included definition of it were necessary at all, it within the provisions of the act, which, in its should have been restricted to the meaning nature, must be liberally and beneficially in- l of the word as it occurs in section 3 of said terpreted; if otherwise interpreted its inherent article wherein certain contracts are prohibimport would be restricted and the remedy ited employers and declared to be null and therein provided be materially impaired. suable wrong committed by a public corporation void if made. There was no necessity for a should not become remediless by the death of definition of the word as it appears in secthe person injured. In this case there exist tion 7 of said article, being the section prono circumstances upon which such a restriction viding for the enactment of the Employers' could be based in order to diminish by construc- Liability Law. The Morrell Case, besides tion the natural meaning and force of the terms being an action for negligence, grew out of used in the statute. In the construction of a remedial statute, the rule is to avoid all subtle the performance of a governmental or politiinventions and evasions for the continuance of cal duty, and not out of a proprietary busithe mischief and denial of the remedy, et pro

ness of the city, as in this case. It was based privato commodo; the duty of the court is to upon the common law of negligence and conadd force and life to the cure and remedy ac-trolled by common-law rules and not by the cording to the true intent of the maker of the Employers' Liability Law. The demurrer act, pro bono publico."

should not have been sustained.

For the reasons above given, the judgment See, also, Keever v. Mankato, supra; Keep is reversed, and the cause remanded for furv. Nat. Tube Co. (C. C.) 154 F. 121.

ther proceedings not inconsistent with this The state Constitution, section 5 of article opinion. 13, provides that municipal corporations may engage "in any business or enterprise which MCALISTER, C. J., and LYMAN, J., con. may be engaged in by a person, firm, or cor

230 P.-70



superior court of Pima county, Ariz., against WEITZEL V. WEITZEL (SOUTHERN PAC. the Southern Pacific Railroad Company of R. CO. OF MEXICO, Garnishee). Mexico, in an effort to reach a debt the rail. (No. 2176.)

road company owed Harry E. Weitzel on (Supreme Court of Arizona. Dec. 10, 1924.) account of wages earned in Mexico, and ap

ply it on a judgment for alimony obtained by 1. Courts Om 12(3)--Foreign railroad corpora- her against Harry E. Weitzel in said supetion held subject to Arizona courts.

rior court, in an action in which he was perForeign corporation operating railroad ex- sonally served and defended. clusively in Republic of Mexico, but maintain The Southern Pacific Railroad Company of ing offices in Arizona where were located most of its principal officers, and which majn- mitted that Harry E. Weitzel was employed

Mexico in its verified answer to the writ adtained a permanent bank account in Arizona out of which it paid employees and

and was working for it in the Republic of current bills, held subject to Arizona courts.

Mexico and that it owed him at the date of 2. Garnishment em81(1)-1| debt of garnishes claimed that such debt was not subject to

answering 619 pesos, Mexican money, but is not within court's jurisdiction, it cannot garnishment because it was for wages earned be appropriated to payment of plaintiff's and payable in Mexico. It claimed the situs claim. Though garnishee is within jurisdiction of

of such debt was in Mexico and not in Ari. court, if its debt to defendant is not also

zona. Finally, it claimed that the Mexican within that jurisdiction it cannot be legally courts would not recognize the forced pay. appropriated to payment of plaintiff's judg- ment in Arizona as satisfaction of the debt, ment.

but would make it pay the claim in Mexi3. Garnishment w81(2)-Debt, though for co, notwithstanding its payment in Arizona. wages earned and payable in Mexico, held

The trial court took the view of the garsubject to garnishment in Arizona.

nishee and entered judgment dismissing the Where judgment creditor and garnishee writ, and it is from such judgment that Josewere within jurisdiction of Arizona courts and phine Weitzel appeals. judgment debtor entitled to sue garnishee on [1] The garnishee also claims that being his claim in Arizona, held, though debt was for a foreign corporation, operating a railroad wages earned and payable in Mexico, it was located exclusively in the Republic of Mexisubject to garnishment in Arizona, provided co, it is exempt from being sued in the courts payment in such manner would be recognized of Arizona. However, the record shows that by Mexican courts.

it has offices in Tucson. Pima county, Ariz., 4. Garnishment am 237-Garnishee's payment where are located most of its principal offi

of judgment against it is bar to judgment cers and where a force of employees are endebtor's action in another state.

gaged in working for it; that it has a perUnder full-faith and credit clause of fed- manent bank account in the Consolidated Naeral Constitution, garnishee's payment of tional Bank of Tucson out of which it pays judgment entered against it in one state is a its local employees and officers and also some bar to action on its debt in another state.

of its current bills. Thus it is seen the gar. 5. Garnishment On 81 (2)-Arizona creditor | nishee's business in Arizona is not only con

held not entitled to garnishee debt earned siderable in amount but of a permanent and and payable in Mexico which might be there continuous nature. As was said in Tauza again enforced.

v. Susquehanna Coal Co., 220 N. Y. 259, 115 Arizona creditor held not entitled to gar- N. E. 915, speaking of the situs of a corpo nishee in Arizona debt earned and payable in ration for the purposes of service of process: Mexico, since Mexican courts were under no obligation to recognize any payment made by

"If in fact it is here, if it is here, not ocgarnishee and judgment debtor might in such casionally or casually, but with a fair measure courts enforce a second payment.

of permanence and continuity, then, whether its

business is interstate or local, it is within the Appeal from Superior Court, Pima County; jurisdiction of our courts." Kirk T. Moore, Judge.

See, also, International Text-Book Co. V. Garnishment proceedings by Josephine Tone, 220 N. Y. 313, 115 N. E. 914; AtkinWeitzel against Harry E. Weitzel and the Southern Pacific Railroad Company of Mexi- 232, 152 N. W. 410, L. R. A. 1916E, 241.

son v. United States Operating Co., 129 Minn. co, garnishee. From judgment dismissing

That the garnishee had submitted itself to writ, plaintiff appeals. Affirmed.

the jurisdiction of our courts, so far as debts Charles Blenman, of Tucson, for appellant. and liabilities incurred in Arizona are con

C. J.' Hellerstedt and G. 0. Hilzinger, both cerned, is certain. It was in the state doing of Tucson, and Charles L. Rawlins, of Globe, and carrying on business therein, receiving for appellee.

the state's protection and acknowledging its

sovereignty over it, and we think generally ROSS, J. Josephine Weitzel, the appel- subject to its processes. lant, sued out a writ of garnishment in the [2, 3] This brings us to the question of the

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