Beebe v. Farish

• Decision Date: 01 October 1912
• Docket Number: Civil 1237
• Citation: 127 P. 715,14 Ariz. 231
• Parties: GEORGE BEEBE, Appellant, v. THOMAS E. FARISH, Appellee
• Court: Arizona Supreme Court

127 P. 715

14 Ariz. 231

GEORGE BEEBE, Appellant, v. THOMAS E. FARISH, Appellee

Civil No. 1237

Supreme Court of Arizona

October 1, 1912

APPEAL from a judgment of the District Court of the Third Judicial District, in and for the County of Maricopa. Edward Kent Judge. Affirmed.

The facts are stated in the opinion.

Mr Eugene S. Ives and Mr. S. L. Pattee, for Appellant.

Messrs Kibbey, Bennett & Bennett, for Appellee.

OPINION

ROSS, J.

This appeal came to this court from an order of the lower court made after judgment, refusing to set aside and vacate the judgment upon application of appellant, who was defendant below. The case was originally commenced January 19, 1907. Personal service of summons was had on defendant March 13, 1907. Answer of defendant was filed and issues formed April 21, 1907. The case was continued from time to time, until on April 17, 1911, the first day of the regular April term, the court set it down for trial on April 25, 1911. The defendant was represented from the time of filing his answer until April 20, 1911, by the same attorney. On the last-mentioned date his attorney withdrew from the case. The defendant was not represented at the trial, which took place on April 25, 1911, and resulted in a judgment in favor of plaintiff.

The motion to vacate the judgment is based upon the following four grounds:

"(1) That defendant had no knowledge of the time said cause was set for trial, and was unable to be present at the trial of this cause and present his defense to this action by reason of inability to receive notice of the time of trial, and without his fault.

"(2) That defendant was prevented from learning the time this cause was set for trial, and was unable to be present at said trial, on account of circumstances beyond his control.

"(3) That this defendant has a just defense to the merits of this action, and was unable to present the same on account of inability to receive notice of the time of trial, and to attend such trial.

"(4) That defendant was unable to learn and had no knowledge of the time this cause was set for trial, and was unable to attend said trial for reasons stated in his affidavit hereto annexed."

This motion was supported by the affidavit of defendant and his attorney, who had withdrawn from the case on April 20, 1911. The attorney's reason for withdrawing was that he did not know where his client was and was unable to get word to him and have his presence at the trial. The affidavits and motion were filed on July 18, 1911. Briefly stated, the defendant made affidavit that his business affairs required his presence in Mexico, and that he left for that country the -- day of March, 1911; that because of the insurrection or revolution that was taking place in Mexico at that time he was unable to communicate with his attorney or return to the United States; that he knew nothing of the setting of...