of June 22, 1874, containing this provision, was repealed by section 29 of the act of June 10, 1890, c. 407, 26 Stat. 141, 1 Supp. Rev. St. U. S. 755 [U. S. Comp. St. 1901, p. 1897], and no similar provision was enacted in place thereof, so that, however harsh the present law may appear to be, it nevertheless is the law now in force, and fully sustains the ruling of the court in refusing the instruction requested by claimant. The record disclosing no error, the judgment of the lower court is affirmed. KENT, C. J., and SLOAN, J., concur. (8 Ariz. 409) HALL v. TERRITORY. (Supreme Court of Arizona. March 26, 1904.) CRIMINAL LAW-APPEAL. 1. Under the express provision of Pen. Code 1901, § 1067, no appeal can be taken from a judgment of the district court rendered in a case appealed from a justice court. Appeal from District Court, Navajo County; before Justice Richard E. Sloan. Ernest Hall was convicted of a misdemeanor, and appeals. Dismissed. Klock & Owen and W. H. Burbage, for appellant. E. W. Wells, Atty. Gen., T. F. Moran, Dist. Atty.. and J. E. Morrison, for the Territory. PER CURIAM. The appellant in this case was tried before a justice of the peace upon a misdemeanor charge, and was convicted. He appealed to the district court, where a trial de novo again resulted in a judgment of conviction. He now seeks to prosecute a further appeal to the Supreme Court. From this he is debarred by section 1067 of the Penal Code of 1901, which provides: There shall be no appeal from a judgment of the district court rendered in a case appealed from a justice, police or recorder's court." The appeal will therefore be dismissed. (8 Ariz. 404) * PERRIN v. MALLORY COMMISSION CO. (Supreme Court of Arizona. March 26, 1904.) PLEADINGS-DEMURRER-AMENDMENT IN BAR PROPRIETY. 1. Rev. St. 1901. par. 1350, provides that the defendant, in his answer, may plead as many defenses as he may have, but such pleas must be separately stated in one answer, filed at the same time and in the following order: "(5) Demurrer. (6) In bar of the right to sue.' Paragraph 1288 provides that all pleadings or proceedings may, upon leave of court, be amended at any stage of the action, or they may be amended before trial, without leave, upon serving the adverse party with a copy. Paragraph 1293 provides that the court shall disregard any error or defect in the pleadings which shall not affect the substantial rights of the parties, and no judgment shall be reversed or affected on account thereof. Held, that a general demurrer was an answer which, before trial, might be amended, as a matter of right, by alleging matters in bar of the action. Appeal from District Court, Coconino County; before Justice Sloan. Action by the Mallory Commission Company against E. B. Perrin, Judgment for plaintiff, and defendant appeals. Reversed. Edward M. Doe and Jos. H. Kibbey, for appellant. E. E. Ellinwood, for appellee. DAVIS, J. On the 19th day of March, 1903, the Mallory Commission Company brought an action in the district court of Coconino county against E. B. Perrin to recover upon a promissory note alleged to have been executed by the defendant to the plaintiff company. For his answer to the complaint, the defendant on April 15, 1903, filed a general demurrer only. This was the state of the pleadings when the ensuing term of the district court opened, September 21, 1903. On the second day of the term, and before the trial of said cause, the defendant served upon the plaintiff, and filed with the clerk, an amended answer alleging matters of defense in bar of the said action. Thereupon the plaintiff moved to strike this amended answer from the files because it set up for the first time matters in bar which were not pleaded and filed with the answer of April 15, 1903, and the plaintiff also asked for a judg ment on the pleadings. The record shows that on September 25, 1903, the court overruled the demurrer to the complaint and granted the motion of the plaintiff. Judgment was rendered upon the pleadings in favor of the plaintiff, from which the defendant now appeals. It is assigned that the court erred in striking the amended answer from the files, and in rendering judgment in the plaintiff's favor upon the pleadings. The case, we think, presents but one question: Was the amended answer such an amendment as the defendant could file as a matter of right? No point was made against its sufficiency in allegations to state a defense to the action, but the ruling of the court was invoked and based solely upon the ground that the answer which contained the defense was not filed in the time and manner required by law. This necessarily leads to a consideration of several provisions of our statutes relating to pleadings and amendments which would seem to bear more or less directly upon the question which is here involved. Paragraph 1350, Rev. St. 1901, provides: "The defendant in his answer may plead as many defenses as he may have; but such pleas must be separately stated in one answer, filed at the same time and in the following order: (1) Denying the jurisdiction of the court. (2) In abatement of the suit. (3) To strike from the complaint irrelevant, redundant or uncertain matter. (4) To make the complaint definite and certain. (5) Demurrer. (6) In bar of the right to sue. (7) Denying the facts constituting the cause of action. (8) Set-off and counterclaim." Paragraph 1288 provides: "All pleadings or proceedings may upon leave of the court be amended at any stage of the action within such time as the court may prescribe, or they may be amended before trial without such leave upon serving the adverse party with a copy of such amended pleading or proceedings." Again it is provided in paragraph 1293 that "the court shall in every stage of an action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect." The only pleading of the defendant, under our Code, is an answer. According to the system of pleading in general prevalence, a demurrer is not an answer, but rather a reason for not answering. In Arizona and Texas, however, a demurrer is treated as a defense, and is required to be pleaded in the answer. The provision of the Texas Code is as follows (Rev. St. 1895, art. 1262): "The defendant in his answer may plead as many several matters, whether of law or fact, as he shall think necessary for his defense, and which may be pertinent to the cause: provided, that he shall file them all at the same time, and in due order of pleading." In Texas the courts have, by construction, determined what is "due order of pleading," and this has been done by recourse to the order of pleading by the defendant at common law. Our statute prescribes the order in which the defenses shall be stated. In Texas (Rev. St. 1895, art. 1188) "the pleadings may be amended under leave of the court, upon such terms as the court may prescribe, before the parties announce themselves ready for trial, and not thereafter." The courts of Texas do not hold that the failure to plead all defensive matters in the original answer precludes the subsequent pleading of an omitted defense, nor that the omission to plead said matters in their due order cannot be remedied by amendment. On the contrary, the provision with respect to amendments is construed with great liberality, and is made applicable alike to the pleadings of both plaintiff and defendant. It is the established practice there to permit the plaintiff to amend, within the period prescribed, by entirely changing his cause of action, and the defendant by setting up a new defense. Williams v. Randon, 10 Tex. 74; Smith v. McGaughey, 13 Tex. 464; Hopkins v. Wright, 17 Tex. 30; Irvine v. Bastrop, 32 Tex. 485; Rules, 47 Tex. 619; Lewis v. Alexander, 51 Tex. 578; McLane v. Paschal, 62 Tex. 102; Wiebusch v. Taylor, 64 Tex. 53; Woods v. Huffman, 64 Tex. 98; Merchant v. Bowyer (Tex. Civ. App.) 22 S. W. 763; G., C. & S. F. Ry. Co. v. Butler (Tex. Civ. App.) 34 S. W. 756. Statutes of amendment are remedial in character, and are to be construed and applied liberally in favor of the privilege of amending. Upon this proposition there will be found no dissenting authorities. Courts have also expressly declared that greater lib erality will be exercised in allowing a defendant to amend his answer than in permitting the plaintiff to amend his complaint. Thorn v. Smith, 71 Wis, 24, 36 N. W. 707; Cayce v. Ragsdale, 17 Mo. 32; Garrison v. Goodale, 23 Or. 307, 31 Pac. 709; Young v. Gay, 41 La. Ann. 758, 6 South. 608. A very good reason for the existence of this rule is that the plaintiff may take a nonsuit and commence another action, whereas the defendant, if denied the privilege of amending, might be without remedy. Our own statute relating to amendments is so liberal that it would be difficult to extend it by construction, and we are not at liberty to place upon it limitations which the Legislature has not seen fit to prescribe. It is not declared that the pleadings of the plaintiff alone may be amended, nor yet that the amendment shall be only of the cause of action or the defense already stated, but the broad language of paragraph 1288 is that "all pleadings or proceedings may * * be amended." And this may be done "upon leave of the court * * ** at any stage of the action," or "before trial without such leave upon serving the adverse party with a copy of such amended pleading or proceedings." We think the statute plainly contemplates that any amendment which, during the progress of the action, the court would have power to permit in furtherance of justice, may before trial be made by the party, as a matter of right, upon the service thereof as prescribed. It would also seem clear that if, as held in Texas, a new cause of action or defense may properly be introduced by amendment "under leave of the court * * * before the parties announce themselves ready for trial," there would be at least equal warrant for the same practice under a statute which permits amendments to be made “before trial without such leave." The code provisions of the various states relating to amendments are far from uniform. There will, however, generally be found in them some limitation the effect of which operates to prevent any substantial change of the claim or defense. No such limitation is expressed in our statute, and we feel compelled, therefore, to give it the broad interpretation which its plain terms seem to require. As we have previously observed, the only pleading of the defendant under our Code is an answer. If the answer consists of but a demurrer, it is nevertheless an answer and a pleading. While the requirement is that the answer must contain all of the defenses, and in a certain order, it does not follow that, if there has been an omission in this respect, it cannot be remedied by amendment. To deny the power of the court to permit of such an amendment would in many cases be equivalent to a denial of justice. To admit it is also to admit the right of the defendant te make the same amendment "before tria' without such leave." But the latter is un questionably the true intent and meaning of the law as it stands. The Legislature had the right to make our system of pleading as illogical and unscientific as it chose. If it be found, in practice, to operate unfavorably to the orderly and speedy administration of justice, relief must be sought at the fountain. The defendant had the right, under the statute, at any time before trial, to amend his pleading by setting up the new defense, and the court erred in striking the amended answer from the files and refusing to consider it. For this error, the judgment must be reversed, and the cause remanded to the district court for a new trial. KENT, C. J., and DOAN, J., concur. (8 Ariz. 410) MacRITCHIE et al. v. STEVENS et al. (Supreme Court of Arizona. March 26, 1904.) JUDGMENT-SUIT TO SET ASIDE-SICKNESS OF ATTORNEY-SUFFICIENCY OF SHOWING APPEAL-ASSIGNMENTS OF ERROR. 1. Complainant, suing to set aside a judgment of foreclosure, alleged that he was a nonresident, and depended for information as to what was passing in the local courts exclusively on his attorney, and that he never knew of the entry of the judgment until nearly two years thereafter. He further alleged, on information and belief, that at the date of the entry of the judgment his attorney was very sick, and not in a condition to attend to complainant's business, and did not know of the entry of the judgment, and that the attorney died a few months thereafter. The attorney's name appeared both in the answer and the agreed statement of facts as attorney for complainant, and the transcript of the minute entries showed his presence in court in complainant's behalf when the case was submitted and when the judgment was rendered. There was no evidence as to the attorney's incapacity or ignorance of the judgment or of the time of his death. Held, that the complainant was not entitled to have the judgment set aside. 2. On appeal in a suit to set aside a judgment, assignments of error alleged to have been committed on the trial of the former case cannot be considered. Appeal from District Court, Pinal County; before Justice Doan. Suit by Charles MacRitchie and another against Helena Stevens and others. Judgment for defendants, and plaintiffs appeal. Affirmed. W. H. Griffin, for appellants. J. E. O'Connor, for appellees. DAVIS, J. On February 11, 1902, Charles MacRitchie and John Nichol brought an action in the district court of Pinal county against the appellees, Helena Stevens, Mary Truman, Margaret Phy, and W. C. Truman, sheriff, to set aside a judgment of said court, entered on February 27, 1900, foreclosing a mortgage on certain lands in said county, and also to restrain the sheriff from proceeding with the sale of said lands under said judgment. As grounds for the relief thus sought, the plaintiffs alleged their ownership of the real estate affected, that they were without knowledge of the rendition of said judgunt, that the same was based upon va rious errors of law and fact, and that a sale thereunder would cast a cloud upon their title. The complaint was answered, and there was a trial upon the issues, which resulted in a judgment on May 9, 1903, denying to the plaintiffs the relief for which they prayed. The appeal is from this judgment. Of the 10 assignments of error contained in the brief of the appellants, only the seventh is entitled to consideration under the rules of this court. This assignment alleges: "The court erred in refusing to set aside the judgment of February 27, 1900, on the ground that the defendants then-plaintiffs and appellants now-had no knowledge of the pendency of the action, and were deprived of an earlier defense to the judgment." The foreclosure suit in which the judgment of February 27, 1900, was entered, was No. 936 upon the records of the district court. The appellees, other than the sheriff, were the plaintiffs in that case. Charles MacRitchie, Americus L. Pogue, and Edwin P. Drew were the defendants therein. It does not appear, however, that the appellant John Nichol was a party to the suit, or that he was in any position to be affected by the judgment there in. The record shows that an answer was filed and a defense made on behalf of the defendants MacRitchie and Pogue, and that the case was submited to the court upon an agreed statement of facts, signed by the attorneys for the respective parties. The name of W. R. Stone, Esq., appears both in the answer and the agreed statement of facts as attorney for said defendants, and the transcript of the minute entries shows his presence in court in their behalf on the day when the case was submitted, and also on the day when the judgment was rendered. In the complaint which was filed by the appellants in the case now before us, we find the following averments: "Complainants allege that they were and are now nonresidents of the territory of Arizona, residing in Chicago, Illinois, and not familiar with what was passing in the courts of Arizona, and for that information depended exclusively upon their attorney, W. F. Stone, a resident of Florence, Arizona. Complainants never knew of the entry of the judgment of February 27, 1900, until about the 18th day of January, 1902. ** * Complainants were never informed by W. R. Stone, their local attorney, of the existence of said judgment aforesaid. * If they had known of it, they would have taken prompt action to have the same reversed or set aside. Complainants further allege, upon information and belief, and they verily believe, that, at the date of the entry of the judgment aforesaid, W. R. Stone was a very sick man, and not in condition of mind and body to properly attend to complainants' business, and that he did not know of the entry of said judgment; that said attorney a few months thereafter departed this life, otherwise he would have informed complainants of the same." It thus appears affirmatively from the allegations of their own pleading that the attorney who, as the records show, conducted the defense of case No. 936, was the authorized representative of the appellants. There was no evidence whatever introduced on the trial to sustain the allegations respecting Mr. Stone's incapacity, his ignorance of the fact of the judgment, or concerning the time of his death, while, on the other hand, as we have seen, the minute entry recites that he was in court at the rendition of the judgment. In a majority of the states the courts have steadily refused to set aside a judgment on the sole ground of the neglect or carelessness of the attorney for the party against whom it was rendered. The act or omission of the attorney is the act or omission of the client, and no negligence will be excusable in the former which would not be excusable in the latter. Black on Judgments (2d Ed.) § 341, and the author's citation of cases. The principle is well settled that courts of equity will not interfere to grant relief against a judgment unless it appear that the party complaining could not avail himself of his defense in the action, or that he was prevented from doing so by fraud, accident, or mistake, without fault or negligence on his part. Each and all of these grounds of equity jurisdiction are wholly wanting in the present case. The 1st, 2d, 3d, 5th, and 10th assignments of error are but general and indefinite. They point us to nothing specific, and utterly fail to comply with the express provision of our rules. The 4th, 6th, 8th, and 9th assignments are of errors alleged to have been committed on the trial of case No. 936, and cannot be considered in the case at bar. Of the former case, it is only necessary to say that it appears the court had jurisdiction of the parties and of the subject-matter, and rendered a valid judgment. We have carefully examined the proceedings in the case which is before us on this appeal, and can find no ground which would warrant us in disturbing the judgment of the lower court. That judgment will therefore be affirmed. KENT, C. J., and SLOAN, J., concur. (8 Ariz. 397) SILVER QUEEN MIN. CO. v. CROCKER et al. (Supreme Court of Arizona. March 26, 1904.) TAX TITLE HOLDER-IMPROVEMENTS-RIGHT TO LIEN-TAX DEED-PRIMA FACIE VALIDITY. 1. Laws 1893, p. 130, Act No. 84, § 20, provides that, if property sold for taxes is not redeemed, the collector must make the purchaser a deed; that the purchaser must, 30 days prior to the expiration of the time for redemption or before applying for a deed, serve on the owner a written notice, etc.; that no deed shall be issued to the purchaser until he files an affidavit showing that the notice has been given; and that, when the territory purchases, the clerk of the board of supervisors shall give the notice and make the affidavit. Section 26, p. 132, provides that if the holder of a tax deed, or claimant under him, be defeated in an action for the recovery of property, the successful claimant shall be adjudged to pay the value of all improvements made by the purchaser or claimant, and such amount shall be a lien on the property. Tax deeds to the territory recited that the clerk of the board of supervisors had filed with the tax collector an affidavit showing that he had personally served on the owner and occupant a written notice, etc., and that more than 30 days had elapsed since the service thereof. Held, that the deeds were valid on their face, so as to entitle a purchaser from the territory to a lien for improvements. Appeal from District Court, Pima County; before Justice Davis. Action by the Silver Queen Mining Company against Charles Crocker and others. From a judgment awarding defendants a lien on the property in controversy, plaintiff appeals. Affirmed. Galpin & Bolton and Hereford & Hazzard, for appellant. Selim M. Franklin, for appellees. DOAN, J. In an action to quiet the title to the Silver Queen Mine, brought by the patentee against Crocker et al., holding under tax deeds from the territory, the trial court held that the deeds from the tax collector to the territory were invalid, that the title was in the plaintiff, and that the defendants in good faith had made improvements on the property to the value of $7,465, which sum was a lien upon the property, and decreed that the plaintiff be let into possession of the property on the payment thereof. From that part of the judgment holding the improvements to be a lien on the property, and decreeing the payment therefor by the claimant as a condition precedent to the entry into possession, the plaintiff has appealed, and assigns as error that "the court erred in its judgment that the value * * of the improvements * was a lien up * on the property, and should be paid * ** before said claimant should be let into possession of the property." It was found as a fact by the court that, in the case of each of the tax deeds to the territory, "no notice of application for said deed was given or served by the clerk of the board of supervisors as required by law." It was found, as a conclusion of law, "that each and all of said tax deeds executed to the territory of Arizona, under which the defendants Crocker and Scrivner, as the grantees of the territory, claim title, are invalid.” It was also found, as a fact, "that after the execution of said deeds to Crocker he went into possession of the property, claiming said property in good faith; that on April 11, 1900, Crocker conveyed an undivided onehalf interest in said property to defendant Scrivner." The only ground on which the tax deeds to the territory were attacked was that no notice of application for such deeds was given as required by law, and on that ground they were found invalid. We have before us only the findings and judgment of the court, and the deeds in question filed as exhibits. The minutes of the court show that several witnesses were sworn and testified, but none of the oral testimony given at the trial is preserved in the record. * The law under which notice of application for tax deeds is required to be given provides (Act No. 84, p. 130, Laws 1893, § 20): "If the property is not redeemed within the time allowed by the law for its redemption, the collector or his successor in office must make to the purchaser or his assignee a deed to the property * *. The purchaser of property sold for delinquent taxes, or his assignee, must, thirty days previous to the expiration of the time for the redemption, or thirty days before he applies for a deed, serve upon the owner of the property purchased, or upon the person occupying the property if said property is occupied, a written notice reciting that said property or a portion thereof has been sold for delinquent taxes, giving the date of the sale, the amount of property sold, the amount for which it was sold, the amount then due, and the time when the right of redemption will expire or when the purchaser will apply for a deed, and the owner of the property shall have the right of redemption indefinitely until such notice shall have been given and the said deed applied for, upon payment of the fees, percentage, penalty and costs required by law, * * and no deed of the property sold at a delinquent tax sale shall be issued by the tax collector or any other officer to the purchaser of such property until after such purchaser shall have filed with such tax collector or other officer an affidavit showing that the notice herein before required to be given has been given as herein required. * When the territory becomes the purchaser, the clerk of the board of supervisors * * * shall give the notice and make the affidavit. 串 * The question presented is whether the deeds to the territory were valid on their face, and therefore, until attacked and defeated by extrinsic facts showing their invalidity, were sufficient to give to a purchaser from the territory the right of possession, and authorize him to improve the property, or whether they were void upon their face, indicating to a purchaser that the title of the territory was invalid, and therefore insufficient for such purpose. This can be best determined by testing the deed by reference to the authority recited in it for its execution, in connection with the act giving the officer the power to make it. When the recitals in the deed indicate the proper exercise of the powers granted, in the manner required by the law, it is held to be prima facie valid. It is not necessary that it be sufficient to withstand all evidence brought against it to show that it is bad, but it must appear to be good upon its face. When, however, the deed itself discloses that it is executed in violation of the law, or bears upon its face the evidence of noncompliance with a substantial requirement of the law, it is upon its face absolutely null and void, and not admissible in evidence for any purpose. It does not give constructive possession nor the right of actual possession. Moore v. Brown, 11 How. 414, 13 L. Ed. 751; Gomer v. Chaffey, 6 Colo. 314; Redfield v. Parks, 132 U. S. 239, 10 Sup. Ct. 83, 33 L. Ed. 327; Seaverns v. Costello (Ariz.) 71 Pac. 930. Two deeds from the tax collector to the territory, the one executed on April 18,, 1898, in pursuance of the sale made on the 18th of April, 1896, and the one made on September 14, 1899, in pursuance of the sale made on the 14th of April, 1898, are valid on their face, fully showing the authority of the tax collector to execute them. The requirement of the law reads: "No deed shall be issued by the tax collector to the purchaser until after such purchaser shall have filed with such tax collector or other officer an affidavit showing that the notice hereinbefore required to be given has been given as herein required." Each of the deeds mentioned contains the recital of the filing of such affidavit with the tax collector, showing the service of notice as required in each instance, in the following language: * "Whereas, Fred G. Hughes, the clerk of the board of supervisors * has filed with Charles F. Hoff, treasurer and ex-officio tax collector * an affidavit showing that he, the said Fred G. Hughes, as such clerk, personally served upon Silver Queen Mining Co., the owner of the above described property, * the person occupying the above described property, a written notice, stating that said property had been sold to the territory of Arizona for delinquent taxes on the 18th day of April, 1896; the amount for which it was sold; the time for redemption and when the purchaser would apply for the deed unless said property was redeemed, and the amount of redemption money then due; and required * and whereas, more than thirty days have elapsed since the service of said notice ** * * * * "Whereas, W. P. B. Field, the clerk of the board of supervisors has filed with Harry A. Drachman, treasurer and ex-officio tax collector * an affidavit showing that he, the said W. P. B. Field, as such clerk, personally served upon Silver Queen Mining Co., the owner of the above described property, the person occupying the above described property, a written notice, stating that said property had been sold to the territory of Arizona for delinquent taxes on the 14th day of April, 1898; the amount for which it was sold; the time for redemption and when the purchaser would apply for the deed unless said property was redeemed, and the amount of redemption money then due; and required and whereas, |