Coulas v. Smith, 7279
Decision Date | 01 October 1964 |
Docket Number | No. 7279,7279 |
Citation | 96 Ariz. 325,395 P.2d 527 |
Parties | Nicholas COULAS, Appellant, v. Paul J. SMITH and William J. Bray, Jr., Appellees. |
Court | Arizona Supreme Court |
Johnson, Darrow, D'Antonio, Hayes & Morales, Tucson, for appellant.
Richard H. Goetz and Jo Ann Diamos, Tucson, for appellee Bray.
Lester J. Hayt and Donald F. Watson, Phoenix, for appellee Smith.
This is an appeal from an order of the Superior Court of Pima County, denying a motion to set aside a judgment entered against the appellant.
The appellant and appellees will be referred to herein as they appeared in the lower court, the appellant as defendant and the appellee, Smith, as plaintiff and the appellee, Bray, as cross-claimant.
The plaintiff filed a complaint against the defendant and cross-claimant on two counts. The first count was for $669.32 on an open account. The second count was on a promissory note upon which $3,666.67 was alleged to be due. The cross-claimant answered individually by his attorney and denied any liability to the plaintiff on either count and thereafter filed a cross-claim against the defendant in which he sought judgment against the defendant for any sums or amounts which the plaintiff may obtain against him by virtue of the judgment; for the sum of $4,000 on a debt alleged to be owed by the defendant to him, and $500 attorney's fees. The defendant appeared individually by his attorneys and answered the complaint of the plaintiff, answered the cross-claim of the cross-claimant, and counterclaimed against the plaintiff, seeking damages in the sum of $18,000. The plaintiff replied to the defendant's counterclaim.
On July 11, 1958, the lower court made an order setting the case for trial on October 10, 1958. All counsel were notified by the clerk of the court. On October 6, 1958, counsel for the plaintiff and counsel for the cross-claimant stipulated that the trial be set for December 10, 1958. The lower court ordered that the prior trial date be vacated and the case be reset for trial on December 10, 1958. All counsel were regularly notified by the clerk of the new trial setting. The defendant's counsel was not present before the court on October 6, 1958, and did not participate in the stipulation vacating the original trial setting and resetting the case for trial on December 10, 1958. The defendant and defendant's counsel deny ever receiving any notice from the clerk concerning the new trial date.
On December 10, 1958, the new trial date, the case came on regularly to be heard. The defendant did not appear either in person or by counsel. The court made the following minute entry during the course of the trial:
'* * *
'The plaintiff Smith and the defendant Bray announce ready for trial.
'William J. Bray is sworn, cross-examined, and examined.
'Plaintiff's Exhibit 1, being a promissory note in the sum of $4,000.00 dated February 14, 1955, is marked for identification and admitted in evidence.
'IT IS THEREFORE ORDERED that judgment is hereby rendered * * * against the defendant Nicholas Coulas * * *.'
The plaintiff obtained judgment against the defendant on both counts and against the cross-claimant as to count two (the promissory note). The cross-claimant obtained judgment against the defendant on the promissory note. The judgment was entered on December 11, 1958.
On October 29, 1960, nearly two years later, the defendant filed a motion to set aside and vacate the judgment. The trial court denied this motion. The minute entry states:
'IT IS ORDERED that the motion to set aside and vacate judgment is denied. * * *'
The defendant subsequently filed this appeal.
The defendant contends that the 'default' judgment entered against him was void, since he did not receive 3 days' notice of the application for judgment by default pursuant to Rule 55(b) of the Arizona Rules of Civil Procedure, 16 A.R.S., the case of Phoenix Metals Corporation v. Roth, 79 Ariz. 106, 284 P.2d 645 (1955). The defendant's contention would be valid if the judgment below was a judgment by default. A default judgment obtains when a defendant fails to plead or otherwise defend. Rule 55. If he has made an appearance in the case, he must be given 3 days' notice of application for judgment by default. Rogers v. Tapo, 72 Ariz. 53, 230 P.2d 522 (1951); Yeast v. Fleck, 58 Ariz. 469, 121 P.2d 426 (1942); Annot., 51 A.L.R.2d 837 (1957).
However, the defendant's contention is invalid here since the judgment below was not a default judgment. It should be noted that the defendant did plead to the merits. He answered the complaint and filed a counterclaim. He then failed to appear at the trial in person or by counsel. The trial proceeded, evidence was heard, and a judgment on the merits of the plaintiff's and counter-claimant's claims was entered. The judgment was not by default within the meaning of Rule 55. Therefore Rule 55(b) with its 3-day notice requirement is not applicable. In fact, the trial court would have erred if a default was entered, since the case was at issue. Bass v. Hoagland, 172 F.2d 205 (5th cir. 1949) cert. denied, 338 U.S. 816, 70 S.Ct. 57, 94 L.Ed. 494 (1949); Olsen v. International Supply Co., 17 Alaska 643, 22 F.R.D. 221 (D.C.Alaska 1958); Klein v. Rappaport, D.C.Mun.App., 90 A.2d 834 (D.C.1952); Moore's Federal Practice, Sec. 55.03, n. 2 (1962 Cumulative Supplement). Also see Archawski v. Hanioti, 239 F.2d 806 (2nd cir. 1956) and Aetna Securities Co. v. Sickels, 120 Ind.App. 300, 88 N.Ed.2d 789, 90 N.Ed.2d 136 (1949).
The following language is from Bass v. Hoagland, supra, cited with approval in Phoenix Metals Corporation v. Roth, supra, concerning the applicability of Rule 55:
172 F.2d p. 210 (emphasis added).
And note this language from Klein v. Rappaport, supra:
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