Campbell v. Frazer Const. Co.

• Decision Date: 12 March 1969
• Docket Number: No. 2,CA-CIV,2
• Citation: 9 Ariz.App. 262,451 P.2d 620
• Parties: Jerome CAMPBELL and Lois Campbell, husband and wife, Appellants, v. FRAZER CONSTRUCTION COMPANY, a corporation, and James Frazer, Appellees. 562.
• Court: Arizona Court of Appeals

Page 620

451 P.2d 620

9 Ariz.App. 262

Jerome CAMPBELL and Lois Campbell, husband and wife, Appellants, v.FRAZER CONSTRUCTION COMPANY, a corporation, and James Frazer, Appellees.

No. 2 CA-CIV 562.

Court of Appeals of Arizona.

March 12, 1969.

Rehearing Denied April 23, 1969. See 453 P.2d 365.

Arthur R. Buller, Tucson, for appellants.

Lesher, Scruggs, Rucker, Kimble & Lindamood, by E. F. Rucker, Tucson, for appellees.

MOLLOY, Chief Judge.

We are again presented with the question of how much 'discretion'a trial court has in setting aside a default and a default judgment.

In this action, the defendants, Frazer Construction Company, an Arizona corporation, and James Frazer, an individual, were served on December 12, 1967, with process in an action seeking damages from breach of contract and for negligence.The manner of service was personal delivery of a copy of the summons and complaint by a process server, in pursuance of 4(d), Rules of Civil Procedure, 16 A.R.S.The place of service was in Tucson, Arizona.On January 5, 1968(a Friday--twenty-four days after service), a default was taken against the defendant, Frazer Construction Company, and on January 8, 1968, a default was taken against James Frazer.A judgment was entered on the default on January 8, 1968.

An unverified motion to set aside default was filed with the court on January 12, 1968, on behalf of both the corporation and the individual defendant.This motion indicated that an affidavit in support of the motion would follow and such an affidavit was filed on January 17, 1968.

This affidavit, the only evidentiary matter presented to the court in support of the motion to set aside, indicated that the deponent, James Frazer, had '* * * apparently misread the instructions on the Summons in that he believed he had thirty days within which time to file an Answer.'According tot his affidavit, the defendant Frazer had attempted to contact an attorney on January 5, 1968, but the attorney whom he selected to employ was ill on this day, and he was given an appointment on January 8, 1968.The affidavit further stated that the affiant was '* * * generally unfamiliar with the preliminaries regarding the filing and answering of lawsuits and was unaware that the complaint had to be answered within twenty days.'

For 'meritorious defenses,' the affidavit denied the performance of any negligent acts and stated that the plaintiffs in the action had '* * * assumed the responsibility of the construction of the house * * *'(the plaintiffs' complaint alleged that the defendants had contracted to build a house for the plaintiffs and that the plaintiffs had been damaged by improper plumbing installed in the house), and that the affiant and the plaintiffs'* * * were partners in a joint venture whereby the defendant did the building and the plaintiffs did the selling, but in which joint venture the responsibilities were to be shared equally.'Further, the affidavit alleged that a one-year statute of limitations had run on the plaintiffs' claim.

On the basis of this affidavit, the trial court entered an order setting aside both the default and the default judgment.In our view this was error.

It is the established law of this state that default judgments are not favored, Ramada Inns, Inc. v. Lane and Bird Advertising, Inc., 102 Ariz. 127, 129, 426 P.2d 395, 397(1967), and, if there is 'any doubt' as to whether a default should be set aside, it must be resolved in favor of the application, Marquez v. Rapid Harvest Co., 99 Ariz. 363, 366, 409 P.2d 285, 287(1965).Our Supreme Court has stated on numerous occasions that the resolution of problems involving the setting aside of a default rests in the 'sound discretion' of the trial court.Gray v. Dillon, 97 Ariz. 16, 17, 396 P.2d 251, 252(1964);Schering Corporation v. Cotlow, 94 Ariz. 365, 370, 385 P.2d 234, 238, 17 A.L.R.3d 617(1963);Preston v. Denkins, 94 Ariz. 214, 219, 382 P.2d 686, 689(1963);Thomas v. Goettl Bros. Metal Products, 76 Ariz. 54, 57, 258 P.2d 816, 817(1953);Rogers v. Tapo, 72 Ariz. 53, 57, 230 P.2d 522, 525(1951).With almost invariable consistency, appellate court decisions of this state have affirmed the setting aside of a default and a default judgment.See, e.g., cases cited Supra.

Despite the overwhelming majority favoring the setting aside of defaults, we do not believe that the 'discretion' of the trial judge is unlimited.We believe it is still the law of this jurisdiction that there must be a showing of some circumstance that is somewhat out of the ordinary in order to give rise to a power of 'discretion' in the trial court.In the area of mistake or neglect, and this is the area in which this case must fall, the law appears to be that the moving party must show that:

'* * * the conduct causing the default might be the act of a reasonably prudent person under the same circumstances.'Ramada Inns, Inc. v. Lane and Bird Advertising, Inc., 102 Ariz. 129, 426 P.2d 397.

Here, the only circumstance called to the trial court's attention was that, the moving party had '* * * apparently misread the instructions on the Summons * * *' The summons is in plain English and the defendants do not appear to be illiterate or handicapped in any way in this regard.If this default can be set aside for this reason, any default can be set aside on the petition of any defendant who is prepared to allege a 'misreading' of the instructions on the summons.

This motion to set aside was filed soon after the default, and the defendants suggest that there be adopted a rule which would permit the setting aside of a default for no other reason than the early filing of the motion.Reliance is taken upon the decision of Mannke v. Benjamin Moore & Company, 375 F.2d 281, 285(3d Cir.1967).In this opinion, the court saw 'no harm' in setting aside the default, because the motion to set aside was filed two days after the entry of default.

We believe there is more at stake than merely 'harm' to the plaintiff.Judicial proceedings merit some dignity in and of themselves.A twenty-day time limit to answer personal service of process within this state has been selected.Conceivably, this time limit could have been fifteen days or twenty-five days, but, once selected, it becomes part of our procedural law.We do not believe that a trial court should have discretion, without a standard upon which to base that discretion, to change this limit.

Any delay in prosecuting a valid claim is 'harm' in some degree to the claimant.The value of the services of counsel to obtain default and default judgment is detriment.And there...