Burbage v. Jedlicka

• Decision Date: 04 March 1925
• Docket Number: Civil 2199
• Citation: Burbage v. Jedlicka, 27 Ariz. 426, 234 P. 32 (Ariz. 1925)
• Parties: W. H. BURBAGE, NAVAJO-APACHE BANK & TRUST COMPANY, a Corporation, et al., Appellants, v. FRANK JEDLICKA, Appellee
• Court: Arizona Supreme Court

234 P. 32

27 Ariz. 426

W. H. BURBAGE, NAVAJO-APACHE BANK & TRUST COMPANY, a Corporation, et al., Appellants, v. FRANK JEDLICKA, Appellee

Civil No. 2199

Supreme Court of Arizona

March 4, 1925

APPEAL from a judgment of the Superior Court of the County of Navajo.A. S. Gibbons, Judge.Judgment reversed with directions.

Mr. C H. Jordan, for Appellant.

Messrs Hibbard & Kleindienst and Mr. Leo T. Stack, for Appellee.

OPINION

ROSS, J.

This is an appeal from an order denying a motion to set aside and vacate a default judgment against defendant Burbage.The action is one to quiet title, and was instituted by plaintiff, Jedlicka, against the defendants some time early in May, 1919, and bears the number 880.

On May 26, 1919, the defendants answered the complaint, and by way of plea in abatement set up another suit pending in the same court, bearing number 832, involving, as claimed by defendants, the same subject matter and related questions.

On December 1, 1919, the minute entry is that plea in abatement was overruled.

December 6, 1920, the court, upon stipulation of the parties consolidated actions 880 and 832.

January 24, 1921, cases were assigned by the local judge to Honorable A. S. GIBBONS, Superior Judge of Apache county.The plea in abatement was argued to Judge GIBBONS on that date, and plaintiff given thirty days to file brief and defendants five days to reply.At each call of the calendar thereafter cases were passed until January 18, 1923, on which date, plaintiff in cause 880 being present by attorney, and no one appearing for defendants, the court entered an order overruling defendants' demurrer to complaint and gave defendants ten days in which to file answer.February 24 1923, Judge GIBBONS presiding and plaintiff being represented by counsel, the default of the defendants was entered, upon plaintiff's motion, for failure to answer.On that day plaintiff submitted his evidence, and the court thereupon gave judgment quieting his title to property involved, and for $1,500 attorney's fees, and costs, against the defendantsNavajo-Apache Bank & Trust Company and W. H. Burbage.

On March 6, 1923, Burbage filed his motion to set aside the default judgment upon the ground that he had received no notice of the overruling of his demurrer, or plea in abatement, or that the case had been set for trial on February 24, 1923, and that no order so setting the case for trial was made by the court, but, if made at all, was made by the judge of the superior court of Apache county while in that county, and not by the superior court of Navajo county, where suit was pending.There was tendered with the motion an answer of merits in which it was shown defendant Burbage was a mere naked trustee in a trust deed or mortgage on the property, the title to which suit was brought to quiet, and offering to quitclaim to anyone the court should determine entitled thereto.This motion was never passed upon by the court, but on appeal has been treated as denied by operation of law.

Burbage appeals and urges several grounds of error, some of which go to proceedings antedating the judgment and the order overruling his motion to set aside judgment; but we think he is, under the law, confined to the one question: Was his default properly entered or the case set for trial by an order of the court on the date it was tried and judgment entered, or, in other words, were the rules of the court followed?

One of the rules of the superior court of Navajo county is as follows:

"No civil cause will be set for trial until all demurrers, motions, and pleas, other than pleas involving issue of fact, shall have been argued and determined or otherwise disposed of, when such causes shall be placed upon the trial docket."

After overruling the demurrer of January 18, 1923, the court entered an order allowing defendants ten days in which to file an answer.On February 24th default was properly entered, unless it be determined that the plea in abatement was still pending and undisposed of.The minute entry of December 1, 1919, shows that such plea was overruled; but afterwards, when the cases were transferred to Judge GIBBONS the plea in abatement was again taken up, argued by counsel, and time granted to file briefs by the respective parties.Thereafter the record fails to show any disposition of such plea, and on the 24th of February, 1923, when default was entered, it was undisposed of, unless effect be given to the ruling of December 1, 1919, We think, in view of the act of the court and the parties in treating it as undisposed of at a date subsequent to December 1, 1919, it should on this motion be given effect, otherwise it would be a mere trap.The court treated it as a live and serious question, and after it was argued took it under...