Brown v. Beck, 4860

• Decision Date: 03 June 1946
• Docket Number: 4860
• Citation: 169 P.2d 855,64 Ariz. 299
• Parties: BROWN v. BECK
• Court: Arizona Supreme Court

169 P.2d 855

64 Ariz. 299

BROWN v. BECK

No. 4860

Supreme Court of Arizona

June 3, 1946

Appeal from Superior Court, Maricopa County; Harold R. Scoville Judge.

Reversed and remanded.

Hill Robert & Hill, of Phoenix, for appellant.

Baker &amp Whitney, of Phoenix, for appellee.

Stanford, Chief Justice. LaPrade and Morgan, JJ., concur.

OPINION

Stanford, Chief Justice.

For the purpose of this appeal we will style the appellant, the defendant, and the appellee, the plaintiff, as they appeared in the superior court.

The issue to be determined in the case is did the trial court abuse its discretion in denying a motion to set aside default taken in this case?

Complaint was filed July 12, 1945, and through a private process server, defendant was served according to the return on July 12, 1945 at 7:52 p. m. The affidavit of service was filed with the clerk of the superior court July 14, 1945. Service was made in Maricopa County where the suit was brought and under our law the defendant had twenty days in which to answer. Twenty-one days after service of process plaintiff took default against defendant, and on the same date default judgment was rendered against defendant for the sum of $ 6,050 plus $ 21.80 as costs. On August 4, 1945, being but two days after judgment, defendant filed his answer to the complaint, the same having been drawn by the defendant and signed by him, said answer having been sent from Clifton, Arizona, being in the eastern part of the state, by a friend of defendant's.

On August 8, 1945, defendant, through his attorneys, filed his verified motion to vacate the judgment and to set aside default. On said motion hearing was had and testimony taken on August 14, 1945, and on August 16, 1945, the trial court entered its order denying defendant's motion. Testimony in the case showed that defendant lived at Clifton, Arizona, where he had a drug store, and he had other places of business in Parker and Phoenix.

The testimony of the defendant shows that he was in Phoenix about nine or ten days during the month of July, 1945; that he was in Parker two days and the rest of the time in Clifton. The distance from Phoenix to Clifton is approximately 225 miles and the distance from Phoenix to Parker is approximately 164 miles. Defendant testified that he left Phoenix to return to Clifton after having been in Phoenix on the 18th day of July; that he was served with process at his place of business in Phoenix at about 6:30 on the 18th day of July; that he left for Clifton about 2:30 or 3:30 on the morning of July 19th.

Defendant has but the following single proposition of law in reference to his assignment of error:

"Where a litigant timely applies for relief from a default judgment taken against him because of his mistake, inadvertence, surprise or excusable neglect, it is the duty of the court to resolve all doubts in favor of such litigant and to exercise its judicial discretion in a manner not to impede or defeat the ends of substantial justice but in a reasonable degree to bring about a judgment upon the merits."

Our Section 21-1502, A.C.A.1939, is:

"Mistake -- Inadvertence -- Surprise -- Excusable neglect. -- On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six (6) months after such judgment, order or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, or (2) to set aside within one (1) year a judgment obtained against a defendant not actually personally notified."

In our recent case of Postal Benefit Insurance Co. v. Johnson, Ariz., 165 P.2d 173, 178, we said:

"It is the law that this statute vests in the trial court the discretionary power to determine whether or not the party may be relieved from such a judgment."

Later on in the case we said:

"The real question here is, did the court abuse its discretion in denying defendant's application to set aside the judgment on the ground of its mistake, inadvertence, surprise, or excusable neglect? * * *"

Our Section 21-1502, supra, or our Rule 60(b), was taken from California, and to aid in establishing that fact and for showing the need of a liberal construction of the rule, we quote from the case of United States v. Mutual Construction Corp., D.C., 3 F.R.D. 227, as follows:

"Rule 60(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides as follows: '(b) Mistake; Inadvertence; Surprise; Excusable Neglect. On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order or proceeding was taken. * * *'"

Then it gives verbatim the same as our Rule 60(b). We further quote:

"The rule here in question is modeled from the California Code, which has a similar provision, and the Supreme Court of California has several times had occasion to construe Section 473 of the Code of Civil Procedure which is analogous to the instant rule here in question and in Williams v. McQueen, 89 Cal.App. 659, 265 P. 339, 340, it is stated as follows: 'The provisions of the Code permitting the setting aside of judgments taken against one where there has been excusable neglect should be liberally construed with a view to effect its objects and promote justice pursuant to the general Code provision * * *. It is remedial in character and should be so applied as to dispose of cases upon their substantial merits and to give to the party claiming in good faith to have a substantial defense to the action an opportunity to present it. Courts therefore should be liberal in relieving parties of defaults caused by inadvertence and excusable neglect * * *.'"

From our case of Daly v. Okamura, 25 Ariz. 50, 213 P. 389, 390, we quote:

"* * * The liberality of the statute authorizing the court 'upon good cause shown' to set aside its judgments upon the facts shown in the record was not violated, but, we think, respected and followed, in this instance.

"By the action of the court the case stands for trial upon its merits, and this is as it should be, generally speaking. The courts uniformly exercise their discretion to that end, when it appears that to do otherwise injustice will result, and such a discretion will not be set aside on appeal except in case of abuse or arbitrariness. Beebe v. Farish, 14 Ariz. 231, 127 P. 715; Dowdy v. Calvi, 14 Ariz. 148, 125 P. 873.

"In the latter case we said:

"'The exercise of the discretion ought to tend, in a reasonable degree at least, to bring about a judgment on the very merits of the case; and when the circumstances are such as to lead the court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the application.'"

In this court's case of Dowdy v. Calvi, 14 Ariz. 148, 125 P. 873, 878, where the trial court had set aside a default and allowed the issues in the case to be heard, in affirming the trial court we adopted the ruling of California again by saying:

"'The exercise of the discretion ought to tend, in a reasonable degree at least, to bring about a judgment on the very merits of the case; and when the circumstances are such as to lead the court to hesitate. upon the motion to open the default, it is better as a general rule, that the doubt should be resolved in favor of the application.' Watson v. San Francisco & H. B. R. Co., 41 Cal. 17, reading page 20."

The Supreme Court of California in the case of Brasher v. White, 53 Cal.App. 545, 200 P. 657, 661, where the facts were that defendant was served August 7, 1920, and took his papers to his attorney and mistakenly informed him that the summons had been served on the 17th day of August, 1920, in reversing the judgment of the trial court, where the latter had refused to grant a motion to set aside default, said:

"From the very earliest history of the jurisprudence of California to the present time it has been held that the power vested by section 473 in the nisi prius courts should be freely and liberally exercised by said courts to the end that they might 'mold and direct its proceedings, so as to dispose of cases upon their substantial merits, and without unreasonable delay, regarding mere technicalities and obstacles to be avoided, rather than as principles to which effect is to be given in derogation of substantial right.'"

But did the trial court abuse its discretion? Restating the facts, service of process was made in Maricopa County where suit was filed on July 12, 1945. Defendant had twenty days in which to answer. On August 2nd, twenty-one days after service of summons and complaint, default was taken and on the same date judgment on default was rendered. On August 4, the second day after default and judgment, defendant sent a general denial of the complaint to the clerk of the court, the same being sent from Clifton, Arizona, and on August 8th through Phoenix attorneys, he filed a motion to vacate the judgment and quash the execution which had been issued on his property.

The words "abuse of discretion" as used in many cases in reference to the action of a trial court is defined as, in the case of Detroit Fidelity & Surety Co. v. Foster, 170 S.C. 121,...