Big Chief Mining Company v. Kohlburner

• Decision Date: 02 October 1945
• Docket Number: Civil 4713
• Citation: Big Chief Mining Company v. Kohlburner, 63 Ariz. 317, 162 P.2d 132 (Ariz. 1945)
• Parties: BIG CHIEF MINING COMPANY, a Corporation, and B. E. MILLER, Appellants, v. FRED A. KOHLBURNER, as Administrator of the Estate of George Kohlburner, Deceased, Appellee
• Court: Arizona Supreme Court

162 P.2d 132

63 Ariz. 317

BIG CHIEF MINING COMPANY, a Corporation, and B. E. MILLER, Appellants, v. FRED A. KOHLBURNER, as Administrator of the Estate of George Kohlburner, Deceased, Appellee

Civil No. 4713

Supreme Court of Arizona

October 2, 1945

APPEAL from a judgment of the Superior Court of the County of Yavapai.Richard Lamson, Judge.

Appeal dismissed.

Mr. T E. Scarborough, Mr. Maurice D. Brown and Mr. Jacob Morgan for Appellants.

Mr. Leo T. Stack, for Appellee.

Scoville Superior Judge.Stanford, C. J., and LaPrade, J concurring.Note: MORGAN, J., being disqualified, the Honorable HAROLD R. SCOVILLE, Judge of the Superior Court of Maricopa County, was called to sit in his stead.

OPINION

Scoville, Superior Judge.

This action was brought in the court below by the appellee to foreclose a mortgage against appellant, Big Chief Mining Company, a corporation, on certain mining claims located in Yavapai county, and for a money judgment against the appellant, B. E. Miller, who it was alleged had received certain moneys due appellee in connection therewith and had converted them to his own use.The judgment was taken after the default of appellants had been entered for their failure to appear and defend.

The appellee has moved to dismiss this appeal, contending that an appeal may not be taken from a default judgment without first having presented a motion to the lower court to set aside the default and such judgment.Appellee urges that upon the state of the record the only order from which an appeal could have been taken was an order entered by the trial court before judgment denying appellants' motions to vacate the default and for leave to file answers, and that no appeal was taken therefrom within the time permitted.As the matter now is brought before us on an appeal from the judgment, appellee contends for its dismissal because of the appellants' failure to have first moved the court below to set that judgment aside and permit them to defend.

Examination of the record does disclose that the default of both appellants was properly entered and that the rules of civil procedure applicable were properly followed by appellee.In fact, appellant does not assign any of these matters as error.The record further discloses that no appeal was taken from the order denying the appellants' motions to vacate the order entering their default and denying appellants' petitions to be permitted to file answers which were heard and ruled upon prior to the taking of the judgment.

If this appeal may be properly entertained by this court, the only assignment of error worthy of consideration is one raised as to the jurisdiction of the lower court to enter judgment against Miller for the amount that it did, contending, therefore, that the judgment is void.No action whatsoever was taken by appellants in the lower court after entrance of the default judgment except this appeal therefrom.

The general rule is found to have been made the law of this forum in McLean v. Territory, 8 Ariz. 195, 71 P 926, 927, in which this court fully reviewed the reasons for the existence of the rule, and dismissed the proceedings in error brought upon an assignment...