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TERRITORY OF ARIZONA COUNTY OF APACHE SS David Lee, being duly sworn says that he is the Defendant in the above entitled action: That he has heard, read the foregoing answer and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters that he believes it to be true. David Lee.
~~~~~~~~~~~~~~~~~~~~~~~~~~~ IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE TERRITORY OF ARIZONA, IN AND FOR THE COUNTY OF APACHE
St. George Creaghe, being duly sworn, deposes and says, that he is and was on the day when he served the annexed summons, a white male citizen of the United States, and an inhabitant of said County of Apache, over the age of twenty one years, and is not a party to the above entitled action: That he received the annexed summons in said action on the 7th day of June, A.D. 1883, and personally served the same upon David Lee, the above named Defendant on the 8th day of June A.D. 1883, by delivering to David Lee the said Defendant, personally in the said County of Apache a copy of said Summons, attached to a true copy of the complaint in said action therein named, and deponent further says that he knows the person so served.
We the Jury in the above entitled case, after long continued earnest and careful consideration of the evidence before us, are unable to render a verdict. W. Van Horn, Foreman ~~~~~~~~~~~~~~~~~~~~~~~~~~ IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE TERRITORY OF ARIZONA IN AND FOR THE COUNTY OF APACHE
And now on this 29th day of August 1883, comes Phineas F.Clanton the above named Plaintiff by C.L.Gutterson his Attorney and acknowledges full and complete satisfaction received from said David Lee, Defendant, for and on account of a certain suit pending in said Court, wherein Plaintiff sues for the possession or value of eleven head of cattle branded J.U. Plaintiff therefore asks that this cause be dismissed upon the payment of all costs of the said action by defendant. To the Clerk of said Court, C.L.Gutterson, Attorney for Plaintiff. ~~~~~~~~~~~~~~~~~~~~~~~~~~
That he expects that said Pace will testify that the plaintiff herein, Phineas F. Clanton, told him that Stanley did own at the time the Constable levied the above named execution upon the cattle in controversy here. an interest therein, and that the said Pace will also testify that he was present at the Constable's sale, and that neither Clanton nor Stanley nor any one on their behalf made any statement or gave any notice to the Public that the cattle were not wholly owned by said Stanley. This affiant further says that this application is not made for delay but that the said case may be tried upon its merits and substantial justice be done. Affiant further says that the reason he has not the bill of sale from the different persons to the defendant of said stock purchased at Constable's sale is because he expected the defendant to be present who would have produced them, but who is detained by sickness as aforesaid. Signed, Wm. M. Rudd
IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE TERRITORY OF ARIZONA IN AND FOR THE COUNTY OF APACHE
Now comes David Lee, the defendant in the above entitled action and for his answer to the complaint of the Plaintiff herein, says that he denies, that on the date specified in the said complaint, or at any other time, the said Plaintiff was the owner or in possession of the personal property described in the complaint herein, or of any part or parcel thereof or of any right, title or interest therein. Denies that the personal property described in the complaint herein is of the value of three hundred and eighty five (385) dollars alleged in said complaint. Denies that this defendant, the said David Lee, the date specified, in the said complaint as at any time wrongfully came into possession of the personal property described in Plaintiff's complaint, or any part or parcel thereof. Denies that the defendant, the said David Lee, wrongfully withheld or detains the said personal property described in Plaintiff's complaint or any part or parcel thereof. Denies that by reason of said alleged wrongfull and unlawful detention of said personal property or otherwise, said Plaintiff has sustained damages in the sum of three hundred and eighty five (385) dollars the alleged value of said personal property or in any sum whatever. Wherefore this defendant, the said David Lee, prays judgement of this court for possession of said personal property or the value thereof and his reasonable damage together with costs of suit.
Said affiant further says that he informed said defendant on or about the 20th day of June, 1882, that this action was to be tried at this Jury term of this Court. And: That it was necessary for him to be present on or before the 5th day of July, for the purpose of trying said cause. That said defendant, then informed this affiant that his mother was there very ill and not expected to live. And that if she were to sufficiently recover so as to render it safe for him to leave his mother, he would be present at said Court at the time stated. That since the commencement of this term of Court, this affiant has sent word to said defendant requesting him to come to Court for the trial of said cause. That said affiant is informed and believes and so states the fact to be that the mother of said defendant is at the present time very dangerously ill, and has been for the five or six days past, speechless, and she is not expected to live from day to day, and the forgoing presence of the defendant from the bed side of his dying mother would be cruel and inhumane. That the said defendant is a necessary and material witness on his own behalf, without whose testimony said defendants case cannot be safely tried. That this affiant on behalf of said defendant expects and avers that said defendant will testify, That Stanley stated to him said defendant, that he, said Stanley, owned the cattle in controversy in this case to the time the same was levied on by the Constable of the Springerville Precinct. That the said cattle were in the possession of said Stanley at the time. That defendant will testify that he purchased the cattle, in controversy, from different persons who purchased the same at Constable's sale under execution against Ebin Stanley, and will also produce the bills of sale therefore. Affiant further says; That John Underwood and W.W. Pace are material witnesses for the defendant without whose testimony defendant cannot safely proceed to trial. That the said John Underwood lives at Safford on the Gila River in Graham County and at a distant so remote that he cannot be reached by subpoena , and no sufficient time has elapsed since the commencement of said, when to procure his deposition. That said W.W. Pace, as this affiant is informed, and believes is, and had been absent from his home at Nutrioso for the purpose of hunting his stock supposed to have been stolen. That this information came to this affiant on July 11, 1882. That some days prior there to time affiant caused a subpoena to be issued to have said Pace subpoenaed, but said subpoena has not been yet returned; But as affiant is informed and believes, said Pace, could not be found for the reasons above stated. That this affiant expects that said Underwood will testify that he, said Underwood, was the owner of the stock in controversy, and while such owner, he sold and transferred that stock in controversy in this case to Ebin Stanley on or about August 1882. That he delivered the same to Stanley, and that he, Stanley, claimed the possession, thereof continuous by until they were levied upon by the Constable under execution against said Ebin Stanley in the case of "Johnson et al Pos Stanley" under which execution they were sold and afterwards , by bill of sale transferred to the defendant herein. ~~~~~~~~~~~~~~~~~~~~~~~~~~ IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE TERRITORY OF ARIZONA IN AND FOR THE COUNTY OF APACHE
The Jury are instructed that if they believe from the evidence that Ebin Stanley was Clanton's Agent, Clanton cannot be bound by the declarations of Ebin Stanley, except as to matters within the Agency of Stanley in and about said cattle; and the mere fact that Stanley may have claimed said cattle as his own, in Clanton's absence gives Stanley no title to said cattle. The declarations of Underwood in reference to any arrangements he may have made with Stanley concerning said cattle from the time at which he sold said cattle to Clanton cannot bound Clanton. The declarations of Underwood either before or after the sale of said cattle cannot and do not bind Clanton unless the same were made in the presence of Clanton and he, Clanton, assented to the same, either orally or by his silence. The Jury are instructed that in the case in "Squire Gerris Court", the defendant was Ebin Stanley, and the judgement was against Ebin Stanley, and no execution issues undid such judgement could be levied upon any property by law, except property that belongs to Ebin Stanley. The Constable, under and by virtue of the execution against Ebin Stanley could only sell whatever interest Stanley had in the property; and if the Jury find that Clanton was the owner of the eleven head of cattle on the execution against Stanley conveys no title to the purchase of the stock at such sale or anyone claiming under such purchases. ~~~~~~~~~~~~~~~~~~~~~~~~~~ IN THE THIRD DISTRICT COURT IN AND FOR THE COUNTY OF APACHE
Territory of Arizona, County of Apache. W. M. Rudd being duly sworn says; that he is one of the attorneys for the defendant herein; that he makes this affidavit herein by reason of the absence of the defendant from St. Johns at the present time for the reasons hereinafter stated. That the defendant herein has fully stated to this affiant the facts of the case herein, and after such statement, this affiant as the counsel of said defendant has advised said defendant that he has a good and substantial defense on the merits. ~~~~~~~~~~~~~~~~~~~~~~~~~~ IN THE DISTRICT COURT OF THE THIRD JUDICIAL IN AND FOR THE COUNTY OF APACHE
The above named defendant for answer to the complaint herein; Denies that on the 15th day of January, 1883, at the County of Apache, Territory of Arizona or at any other time or place, the Plaintiff was the owner or in possession of or entitled to the possession of the personal property mentioned and described in said complaint or any part thereof. On the contrary. Said defendant alleges that he is and was since the 1st day of February, 1883, he has been the owner, in possession and entitled to the possession of said personal property and each and every part thereof. Denies that said personal property mentioned by said complaint is of the value or was of the value at the time of the filing by the complaint herein or at any other time of three hundred and eighty five dollars or any other kind greater than one hundred and ninety (190) dollars. Denies that on February 1st, 1883, or at any other time, he wrongfully came into the possession of said personal property or any part thereof, or that he now be at the commencement of this action or at any other time wrongfully detained the same or any part thereof from the possession of Plaintiff. Denies that the Defendant unlawfully withholds or detains said personal property or any part thereof from the possession of Plaintiff, or at the commencement of this action or at any other time said Defendant did unlawfully withhold or detain said personal property or any part thereof from Plaintiff, either to his damage or in the sum of three hundred and eighty five dollars or in any other sum whatever or otherwise, or in the further sum of two hundred and fifty dollars or any other sum for detention thereof. Wherefore Defendant prays judgement herein and for his costs.
TERRITORY OF ARIZONA COUNTY OF APACHE W.M. Rudd being duly sworn, says that he is one of the Attorneys for the Defendant herein; That he has read the foregoing answers and knows the contents thereof and that the same is true of his own knowledge except as to the matters and things therein stated upon his information or belief, and that as to those matters he believes it to be true. That this affidavit is made by this affiant on behalf of defendant because of the absence of said Defendant from St Johns at this time.
From Jack Becker's Collection |