This is an appeal from a judgment in favor of the defendants, Horace Steele and Ethel Steele, Texas Independent Oil Company, a corporation, and Blakely Oil Incorporated, a corporation, and against the Harbel Oil Company, a corporation, as plaintiffs. Texas Independent Oil Company, a corporation, is the successor in interest to the assets and liabilities of Texas Independent Oil Company, a co-partnership, composed of the defendants Horace Steele and Ethel Steele. This is the fifth time this matter has been on appeal. The proceedings upon which this appeal is based were had after the matter had been remanded by the Supreme Court of Arizona, in the case of Harbel Oil Company v. Steele, 83 Ariz. 181, 318 P.2d 359 (1957). A reading of that decision is essential to an understanding of the matter now before us. In short, the Supreme Court of Arizona held that the various property involved in this action could only be foreclosed by court action as far as the realty was concerned, and as far as the mortgaged property was personal, the foreclosure could only be by sale. The Supreme Court of Arizona also held that the defendants were mortgagees in possession subject to the plaintiff mortgagor's equity of redemption. The matter was before the Supreme Court again in the case of Harbel Oil Company v. Superior Court of Maricopa County, 86 Ariz. 303, 345 P.2d 427 (1959). The Supreme Court of Arizona stated in that case:
Now some five and one-half years after these remarks and some thirteen years after the original complaint was filed, the matter is still being litigated.
The original judgment was entered 14 March, 1955, in Maricopa County, after a
At the second trial held 6 March, 1962, the trial court allowed certain additional matters to be considered which were not considered at the first or original trial. Plaintiff-petitioner objects to the trial court, (1) allowing the defendant in the Superior Court to file what is labeled a cross-claim for foreclosure of the mortgage, (2) permitting the defendant to raise certain affirmative defenses which were not considered in the previous trial, and (3) the alleged failure of the trial court to obey the mandate of the Supreme Court in the opinion rendered 20 November, 1957, by allowing these additional matters. It is the contention of the plaintiff that the mandate of the court would allow only a proceeding in the second trial of an accounting by the defendants and a restoration of the subject property to the petitioner.
We shall take item three first. Our Supreme Court discussed the mandate issued in the Harbel v. Steele case of 20 November, 1957 (83 Ariz. 181, 318 P.2d 359) in the later case of Harbel Oil v. Superior Court of Maricopa County, 86 Ariz. 303, 345 P.2d 427 (1959), when it stated as follows:
The Supreme Court also said in that case, at page 309, 345 P.2d at page 431:
We do not feel that the action of the trial court in allowing the pleadings to be enlarged after the mandate, conflicts with the said mandate in the 20 November, 1957, Harbel v. Steele case (83 Ariz. 181, 318 P.2d 359). In the absence of a mandate or opinion to the contrary, the fact that the matter has been on appeal does not prevent an enlargement or restriction of the issues after the case has been remanded for new trial. Indeed, we can foresee that after both the trial court and counsel have had the benefit of the opinion or opinions of the Supreme Court that the ends of justice would demand that they change their position or enlarge or restrict the pleadings and the trial court might well be remiss in its duties to deny such amendments. Our court has stated:
Rule 16 clearly does not prevent the trial judge from amending or modifying the pre-trial order at or before trial, and the Rules of Civil Procedure specifically provide that a party may be given leave to set up a counter claim by amendment. And also:
We hold then, that under rules 13 (f), 15(a) and 16(a), Rules of Civil Procedure, that the trial court may permit the amendment or enlargement of the pleadings including a counter claim after the pre-trial and after a new trial has been ordered on appeal when in the court's discretion the ends of justice so require. It has been stated by our Supreme Court:
Plaintiff also objects that the trial court committed error by making findings of fact contrary to all the testimony and the evidence. Our Supreme Court has stated:
The judgment affirmed.
DONOFRIO, J., and FRANK X. GORDON, Jr., Judge of the Superior Court, concur.
NOTE: Chief Judge Henry S. Stevens having requested that he be relieved from consideration of this matter, Judge Frank X. Gordon, Jr., was called to sit in his stead and participate in the determination of this decision.