Bell v. Bell

• Decision Date: 18 December 1934
• Docket Number: Civil 3393
• Citation: 44 Ariz. 520,39 P.2d 629
• Parties: ALFRED DOWNING BELL and MADELINE BELL SHARP, Formerly MADELINE BELL, (Defendants), Appellants, v. MARY M. BELL, Individually and as Testamentary Trustee, and MARY PATRICIA SCULLY (Plaintiffs), LUCINDA TEMPLETON, HANNAH NEWMAN, SUSAN H. GROTHE, A. L. HAWLEY, W. E. DUDLEY, J. J. HILL, W. H. HILL, LAURA H. BARNHILL, P. P. SHAI and MORTGAGE INVESTMENT COMPANY, a Corporation (Interveners), Appellees
• Court: Arizona Supreme Court

39 P.2d 629

44 Ariz. 520

ALFRED DOWNING BELL and MADELINE BELL SHARP, Formerly MADELINE BELL, (Defendants), Appellants, v. MARY M. BELL, Individually and as Testamentary Trustee, and MARY PATRICIA SCULLY (Plaintiffs), LUCINDA TEMPLETON, HANNAH NEWMAN, SUSAN H. GROTHE, A. L. HAWLEY, W. E. DUDLEY, J. J. HILL, W. H. HILL, LAURA H. BARNHILL, P. P. SHAI and MORTGAGE INVESTMENT COMPANY, a Corporation (Interveners), Appellees

Civil No. 3393

Supreme Court of Arizona

December 18, 1934

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.

Messrs Cunningham, Carson & Gibbons, for Appellants.

Messrs Ellinwood & Ross, Mr. Wm. H. MacKay, Messrs. Kibbey, Bennett Gust, Smith & Rosenfeld and Mr. John L. Gust, for Interveners-Appellees.

OPINION

LOCKWOOD, J.

William Mitchell Bell died in the county of Maricopa about the year 1914, leaving an estate consisting principally of real property, and as heirs his wife, Mary M. Bell, and three children, Mary Patricia, Madeline and Alfred Downing Bell, all at that time being minors. By the terms of his will, after certain small bequests had been paid, he left all of his interest in the community property to his wife in trust for his three children equally, their shares to be delivered to them, or their survivors, when they reached the age of 21. The wife, of course, was the absolute owner of an undivided one-half interest in the community; the children by the will thus taking a one-sixth interest each. The will was duly probated and the property distributed according to its terms in 1918. The principal asset was certain real estate situate on the corner of Central Avenue and Roosevelt Street in Phoenix, Arizona. At the death of the testator it was unencumbered, but by order of the court it had from time to time been mortgaged, until in 1928 the encumbrance was about $11,000. The carrying cost of the Central Avenue lots, including interest and taxes, in the year 1928, almost equaled the entire income thereof, because of the fact that the improvements thereon were not at all extensive, although the lots at that time were estimated to be worth about $60,000.

On May 12, 1928, Mary M. Bell, individually and as testamentary trustee, as aforesaid, and her eldest daughter, Mary Patricia Bell Scully, who had by that time become of age, and to whom her undivided one-sixth interest in the property had been transferred, filed a suit in the superior court, with Alfred Downing Bell and Madeline Bell, her minor children, as defendants. The suit was brought to secure an order authorizing her, as testamentary trustee, to borrow $91,000 and to execute a mortgage on the property on the corner of Roosevelt and Central Avenue, covering the interests of both plaintiffs and defendants therein, for the purpose of paying off all existing debts and encumbrances and placing extensive and permanent improvements thereon. At this time Alfred Downing Bell was a little over 19 and Madeline Bell was approximately 18 years of age. Summons was duly issued, but there is nothing in the record to show whether the same was ever served on defendants or not. However, on the same day the suit was filed, the trial court made a written appointment of Robert McMurchie as guardian ad litem for Alfred Downing Bell and Madeline Bell to represent them in the action. Some three days later McMurchie, as such guardian ad litem, filed an answer admitting that the defendants were minors, but denying all the other allegations of the complaint, and demanding strict proof thereof, but made no affirmative defense to the action. On the 28th day of May the case came on for hearing; the minute entry of such date showing that the plaintiffs Mary Bell and Mary Patricia Scully appeared in person and by their counsel, W. L. Barnum, and that the defendants Alfred downing Bell and Madeline Bell appeared in person and by their counsel and guardian ad litem, Robert McMurchie. A number of witnesses were examined, and some seven or eight exhibits offered in evidence, and the court thereafter ordered that the prayer of the complaint be granted, and that the trustee be authorized to borrow the sum of $91,000 on the property in question. The money was borrowed, and, so far as it appears from the record, was principally expended in paying the liens already standing against the property and in placing thereon permanent improvements of considerable value. But just about the time that the improvements were completed, the great depression, which has for so long hung over the country, began. The property was not rented for the amount which had been anticipated, and which at the time of the petition it reasonably appeared it could be rented for, and finally, the interest on the mortgage being greatly delinquent, the mortgagee brought suit to foreclose.

Shortly thereafter, and before the foreclosure suit had gone to judgment, the defendants Alfred Downing Bell and his sister Madeline Bell filed various motions in the original suit in which the permission to mortgage for the $91,000 had been granted, to vacate and set aside the judgment entered therein on the ground that the court was without jurisdiction in the matter. A full hearing was had on the motions, and they were finally by the court denied, and, from the order denying such motions to vacate the judgment, this appeal was taken.

It is contended that the court lacked jurisdiction (a) of the persons of the defendants; (b) of the subject matter of the action; and (c) to render the particular judgment in question. The first question of importance is whether this is a direct or collateral attack upon the judgment. It will be observed that the attack was made in the same proceeding in which the judgment was rendered, that it was made by a motion to vacate the particular judgment attacked, and that its direct and only purpose was to set aside the judgment itself and not to secure, directly at least, any other relief. That this is a direct attack we think there can be no question. Reinhart v. Lugo, 86 Cal. 395, 24 P. 1089, 21 Am. St. Rep. 52; Symes v. Charpiot, 17 Colo.App. 463, 69 P. 311; Warren v. Union Bank, 157 N.Y. 259, 51 N.E. 1036, 68 Am. St. Rep. 777, 43 L.R.A. 256; McCampbell v. Durst, 73 Tex. 410, 11 S.W. 380; Mosby v. Gisborn, 17 Utah 257, 54 P. 121.

It is the usual rule that a party who seeks to have a judgment opened must assume the burden of proving the facts essential to entitle him to the relief asked, and, on an inquiry of this kind, if the judgment be rendered in a court of record, every presumption is in favor of the jurisdiction of the court unless it appears affirmatively on the face of the record that it did not have jurisdiction. But, in a direct attack on the judgment for w ant of jurisdiction, these presumptions are prima facie only and may be contradicted by proof. Turner v. Keokuk First Nat. Bank, 30 Iowa 191; Francis v. Lilly's Ex'x, 124 Ky. 230, 98 S.W. 996; Barra v. People, 18 Colo.App. 16, 69 P. 1074; McElroy v. Continental Ry Co., 53 Hun 636, 6 N.Y.S. 306; State v. Superior Court of Pierce County, 19 Wash. 128, 52 P. 1013, 67 Am. St. Rep. 724. The judgment in question did not show lack of jurisdiction upon the face of the record. We then consider whether defendants have overcome the prima facie presumption and shown affirmatively that jurisdiction was lacking.

We consider first the jurisdiction of the person. The record shows the minors appeared by a guardian as, of course, it was necessary that they should. It appears, however, that it was not by a general guardian, but by a guardian ad litem, appointed for the purpose of this suit only. What are the requisites for a valid appointment of a guardian ad litem in Arizona? The appointment was evidently made under the provisions of paragraphs 413, 414, Revised Statutes of Arizona 1913 (Civ. Code), which read as follows:

"413. Whenever it shall appear to any court in any proceeding or matter being had before such court, that the interests of minors are involved in such proceeding or matter, and that said minors have not appeared therein by a guardian, it shall be the duty of such court of forthwith appoint in writing some suitable person to act as guardian ad litem for such minor or minors, in such proceeding or matter, for the purpose of protecting the interest of such minor or minors in such proceeding or matter.

"414. No person shall be appointed as guardian ad litem except upon his written consent, and he shall not be liable personally for costs, unless by special order of the court for some misconduct therein."

And the order appointing, and the consent of the guardian ad litem to act appear affirmatively in the record. It is urged, however, by defendants that they were never served with process in the case, and that a guardian ad litem may not be appointed for minor parties defendant before such service is made. Let us consider of what the evidence presented to the trial court upon this point consists. Defendant Alfred Downing Bell testified upon the stand at the hearing of the motion to vacate that he had never been served with any process of any kind in the suit and that neither he nor his sister were present in court at the time the petition to mortgage was heard. Defendant Madeline Bell filed an affidavit that she had never been served with process of any sort during the suit, but the affidavit was silent as to whether she was present in court at the time of the hearing of the petition to mortgage, and she died not testify personally on the motion to vacate. On the other hand, the minutes of the trial court recite affirmatively that both defendants were present at the hearing on May 28, 1928, and Robert McMurchie, the guardian ad litem, testified that to his recollection the...