(dissenting in part).
I concur with the other members of the Court that the order of the Superior Court quashing the writ of general execution should be affirmed because the judgment plainly did not comply with the requirements of A.R.S. 33-725, subsec. A.
However, I must strongly dissent from their ruling that the judgment determined that the plaintiff was not entitled to enforce a so-called deficiency judgment.
It particularly disturbs me that the majority ruling flies in the face of the facts as established by the record on appeal and ignores well settled principles of law. It is based wholly on conjecture.
The facts set forth in the record on appeal are not complicated. Plaintiff’s complaint sought to enforce collection of a promissory note and to foreclose a mortgage on real property given to secure the note. The prayer of the complaint is standard for this type of action and includes a prayer that, in the event the mortgaged property does not sell for enough to satisfy the judgment, plaintiff then have judgment for any deficiency. The defendants’ answer consisted of a general denial and affirmative allegations that they had transferred all of their right, title and interest in the property to another (who is not a party to this appeal), that plaintiff acknowledged the transfer and looked to the transferee for payment of the installments on the promissory note, and:
“That upon information and belief the plaintiff allowed the defendant UKRAINIAN VILLAGE to retain possession of said property for a period in excess of 10 months without receiving any payment on said note and mortgage and without notifying the defendants L. D. A. GLEESON and TRESA A. GLEESON, his wife, and allowed the property to depreciate in value without giving the answering defendants an opportunity to protect the security of the note sued on herein.” (Emphasis supplied.)
While the motion for summary judgment is not part of the record on appeal recitals of the judgment supply certain relevant facts:
(1) The motion for summary judgment was made by plaintiff and was granted directing summary judgment against the defendants for the amount prayed for in the complaint;
(2) The defendants did not file any affidavit in response to the motion for summary judgment;
(3) The court specifically found that the defendants had failed to plead specifically any matter raising a question of fact in this action;
(4) The court found that all of the material allegations in plaintiff’s complaint were true and that the defendants were indebted to plaintiff upon the promissory note and that the indebtedness was secured by the real estate mortgage in the principal sum of $12,439.52 plus interest, costs and attorneys’ fees.
The court did not find or adjudge that the plaintiff was not entitled to recover a so-called deficiency judgment. This is a holding which the majority seeks to en-graft on the judgment. By doing so, they are taking advantage of a procedural omission by the appellant to deprive him of a substantive right—the right to be paid a just debt. The majority is granting a windfall to the defendants.
The ruling that the trial court necessarily determined that plaintiff was not entitled to a deficiency is legally wrong for three reasons: (1) the judgment does not expressly adjudge that plaintiff was not entitled to a deficiency, (2) plaintiff’s right to relief was not controlled by the prayer of its complaint, and (3) as a matter *581of law, summary judgment could not have been granted in favor of defendants on the deficiency issue.
1. The Judgment does not Expressly Adjudge that Plaintiff was not Entitled to a Deficiency.
The majority assume that the trial court adjudicated that plaintiff was not entitled to a deficiency because its complaint prayed for a deficiency and the judgment did not so provide. A principle binding upon trial courts should be equally binding upon appellate courts: a court may not assume facts upon which to base its judgment. Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952).
The majority have ignored a number of Arizona cases which have recited principles relating to the certainty of judgments. A judgment should be certain in itself or capable of being made so by proper construction. Solana Land Co. v. Murphey, 69 Ariz. 117, 210 P.2d 593 (1949). A judgment which does not show for or against whom it is entered will be void for uncertainty. Brown v. Brown, 38 Ariz. 459, 300 P. 1007 (1931) ; Ackel v. Ackel, 57 Ariz. 14, 110 P.2d 238, 133 A.L.R. 549, Rehearing Denied, 57 Ariz. 118, 111 P.2d 628, 133 A.L.R. 556 (1941). A judgment which finds for both the plaintiff and the defendant is inconsistent and incapable of enforcement. Herr v. Kennedy, 22 Ariz. 141, 195 P. 530 (1921).
The judgment in this case was for the plaintiff in the full amount of its claim. Notwithstanding the plain language of the judgment, the majority would hold that it was for the plaintiff on the amount of the debt but was against him on the amount of the deficiency which he was entitled to collect. To reach that holding the majority must ignore all of the foregoing principles.
It has been held that where two causes of action are stated in a complaint and put in issue at the trial and the judgment awards recovery upon one but is silent as to the other, the judgment is prima facie adjudication that plaintiff was not entitled to recover on the other cause. See Keystone Copper Mining Co. v. Miller, 63 Ariz. 544, 164 P.2d 603 (1945). By analogy, there were two causes of action in the instant case, (1) the plaintiff’s claim on the note and mortgage, and (2) the defendants’ claim that plaintiff was not entitled to a deficiency judgment. The judgment awarded recovery in full upon plaintiff’s claim and was silent as to the right to recover a deficiency. Prima facie, then, there was an adjudication that the defendants were not entitled to be relieved of payment of any deficiency.
2. Plaintiffs right to a Deficiency was not Controlled by the Prayer of its Complaint.
The only reason given by the majority for holding that the question of deficiency was litigated is that the prayer of the complaint specifically requested that the judgment provide for a deficiency and since the judgment was silent with respect thereto, it must be assumed that the matter was in effect litigated and decided adversely to the plaintiff. They seem to impute some significance to the fact that the judgment was “approved as to form, accepted and signed by the Judge”. It has always been my understanding that “approval as to form” signified an act by opposing counsel in compliance with provisions of Rule 58(d), Rules of Civil Procedure, 16 A.R.S. In this case counsel for the defendants did not endorse an approval as to form. The judgment appears to have been mailed to them and lodged with the court for entry in compliance with the rule. Consistent with the foregoing principles with respect to the certainty of a judgment, counsel for the defendants should certainly have objected to the form of the judgment since it did not in any way indicate an adjudication that the plaintiff would not be entitled to enforce a deficiency.
A more serious objection to the reasoning of the majority is their apparent lack of understanding of Rules of Civil Procedure which have been in effect for over *582a quarter of a century. Rule 54(c), Rules of Civil Procedure provides:
“ * * * Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”
In other words, the prayer is not a part of the complaint in relation to determining the sufficiency of the complaint to state a claim for relief. Fenter v. Homestead Development and Trust Company, 3 Ariz.App. 248, 413 P.2d 579 (1966). A litigant’s right to relief is dependent upon the facts legally proved under the pleadings regardless of what is demanded in the prayer. England v. Valley National Bank of Phoenix, 94 Ariz. 267, 383 P.2d 183 (1963); Mackey v. Spangler, 81 Ariz. 113, 301 P.2d 1026 (1956) ; Bechtel v. Benson, 94 Ariz. 350, 385 P.2d 225 (1963). The right to a deficiency judgment is a substantive right which, as a matter of law, is a part of every mortgage in Arizona. Kresos v. White, 47 Ariz. 175, 54 P.2d 800 (1936). Had plaintiff’s complaint not prayed for a deficiency judgment, it would still have been entitled to that relief under the pleadings. In that case, how would the majority have rationalized that there had been an adjudication of no deficiency?
3. As a Matter of law, Summary Judgment could not have been Granted in Favor of Defendants on the Deficency Issue.
Whether there was an adjudication of the trial court on the deficiency issue could well be determined by inquiring as to whether the defendants were entitled to summary judgment in their favor on this issue. If they were not entitled to summary judgment, obviously the judgment could not have included the adjudication which has been inferred by the majority. The record on appeal quite clearly demonstrates that the trial court could not have properly made an adjudication that plaintiff was not entitled to a deficiency judgment. By granting the motion for summary judgment it necessarily determined:
“ * * * the pleadings * * * together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), Rules of Civil Procedure.
The judgment recites that the defendants filed no affidavits in response to the motion for summary judgment. Their answer was verified but the allegations therein by which the defendants seek to defeat a deficiency judgment were made upon information and belief. In connection with a motion for summary judgment “supporting and opposing affidavits shall be made on personal knowledge.” Rule 56(e), Rules of Civil Procedure. Allegations in verified pleadings must conform with the standards for affidavits laid down by Rule 56(e). Fowler v. Southern Bell Telephone and Telegraph Company, 343 F.2d 150 (5th Cir. 1965). Since the defendants did not file any affidavit in opposition to the motion for summary judgment and the allegations of their answer do not comply with the requirements of Rule 56(e), how can the majority hold that the trial court adjudicated in favor of the defendants on the deficiency issue? If a judgment admits of two constructions, that one will be adopted which is consistent with the judgment required by the facts and the law of the case. Graham v. Graham, 174 Cal.App.2d 678, 345 P.2d 316 (1959); Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950). The facts and law of this case require a judgment that plaintiff was entitled to enforce collection of any deficiency.
The failure to provide for the collection of any deficiency in the judgment was obviously an oversight. Its effect is to make the judgment one of strict foreclosure. However, it should not deprive plaintiff of the right to pursue its claim for any deficiency by a new and separate action. See Smith v. Mangels, 73 Ariz. *583203, 240 P.2d 168 (1952). To ignore the facts and law of the case and to rule that there has been an adjudication in favor of the defendants on the deficiency issue is a grave and disturbing miscarriage of justice.
NOTE: Chief Judge JAMES DUKE CAMERON and Judge FRANCIS J. DONOFRIO having requested that they be relieved from the consideration of this matter, Superior Court Judges MELVYN T. SHELLEY and CHARLES L. HARDY were called to sit in their stead and participate in this decision.