Agua Fria Copper Co. v. Bashford-Burmister Co.

• Decision Date: 24 January 1894
• Docket Number: Civil 406
• Citation: 35 P. 983,4 Ariz. 203
• Parties: AGUA FRIA COPPER COMPANY, Defendant and Appellant, v. BASHFORD-BURMISTER COMPANY, Plaintiff and Appellee
• Court: Arizona Supreme Court

35 P. 983

4 Ariz. 203

AGUA FRIA COPPER COMPANY, Defendant and Appellant, v. BASHFORD-BURMISTER COMPANY, Plaintiff and Appellee

Civil No. 406

Supreme Court of Arizona

January 24, 1894

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. John J. Hawkins Judge.

Affirmed.

J. F Wilson, for Appellant.

Herndon & Norris, for Appellee.

An answer filed out of time, and without leave or consent, is no answer, and need not be noticed. The cause stands for hearing on default. Luke v. Johnny, 9 Kan. 511.

This action was for a balance due on account for goods, wares, and merchandise. The clerk was authorized to enter the default. Rev. Stats. Ariz., secs. 807, 808.

An affidavit of merits is indispensable in an application to set aside default. Nevada Bank v. Dresbach, 63 Cal. 324.

Filing an answer after a default has been entered does not affect the default. Irvine v. Davy, 88 Cal. 495, 26 P. 506.

Defendant claims that plaintiff is a mercantile corporation, and that the law of this territory does not authorize a corporation for such purpose.

Chapter 2, title XII, authorizes such a corporation; and we do not deem it necessary to discuss this proposition. We do say however, that if defendant bought goods from this corporation it does not lie in its mouth to now dispute the authority of the plaintiff to sell the goods.

The ruling of a trial court on a motion to set aside a default is largely a matter of discretion, and such ruling will not be disturbed unless the discretion has been abused. Hoag v. Old People's Mut. Ben. Soc., 1 Ind.App. 28, 27 N.E. 438; Carr v. School Dist. of Belton, 42 Mo.App. 154; Garner v. Erlanger, (Cal.) 24 P. 805.

The affidavit fails to show that defendant suffered default by "Mistake, inadvertence, surprise, or excusable neglect," and without such showing defendant has no standing in this court. Skinner v. Terry, 107 N.C. 103, 12 S.E. 113.

Baker, C. J. Sloan, J., and Rouse, J., concur.

OPINION

The facts are stated in the opinion.

BAKER, C. J.

Plaintiff below instituted suit upon a stated account, to recover a balance of $ 421.10. The time for answering having expired the clerk entered the default of the appellant, who, of course, was the defendant. Subsequently to such entry of default, the appellant filed its answer, consisting of an exception to the complaint, a motion to make more definite and a general denial. Upon motion, this answer was stricken from the files, or, which is virtually the same thing, set aside, for the reason that it was filed after the time had expired for answering, and a default had been entered. This action of the court is assigned as error. The appellant did not offer any excuse whatever why it had not filed the answer within the time allowed by law. It assumed, as a matter of course, that the court would set aside the entry of default made by the clerk, and suffer it to answer without first showing any diligence upon its part. The fact that the court was in session did not deprive the clerk of the power to enter the defendant's default. It was not a judgment. The court afterwards entered that. To set aside or strike the answer from the files, under these circumstances, was not error. The appellant subsequently--to wit, July 11, 1893--moved the court to open the default and permit the answer to be filed. This motion was denied, and this action of the court is assigned as error. But, again, the appellant failed to offer any excuse or reason why it had neglected to answer in the first instance. Apparently, it did not propose to excuse its delay at all; as if this was an inquiry with which the court had nothing to do. But the court did offer to permit the appellant to appear and defend, if it would file an affidavit of merits. Treating this motion itself as an affidavit of merits (there being no other paper which it is possible to so designate), it claims that inasmuch as the suit is upon a mercantile account, and as the appellee is a mercantile corporation organized under the laws of this territory, it can have no valid existence, because the act of the territorial legislature (Rev. Stats. Ariz. 1887, title XII, chap. 2) authorizing the formation of corporations for mercantile purposes is in...