Crook v. Crook

• Decision Date: 30 March 1918
• Docket Number: Civil 1572
• Citation: 170 P. 280,19 Ariz. 448
• Parties: OLIVER J. CROOK, Appellant, v. PANSY CROOK, Appellee
• Court: Arizona Supreme Court

170 P. 280

19 Ariz. 448

OLIVER J. CROOK, Appellant, v. PANSY CROOK, Appellee

Civil No. 1572

Supreme Court of Arizona

March 30, 1918

APPEAL from a judgment of the Superior Court of the county of Pima. W. A. O'Connor, Judge. Affirmed.

Mr. Ben C. Hill, Mr. R. W. Sprague and Mr. Frank E. Curley, for Appellant.

Miss Alice M. Birdsall and Mr. W. Fred Kain (Messrs. Owens &amp Wingert, of Counsel), for Appellee.

OPINION

ROSS, J.

The plaintiff prosecutes an appeal from an order denying a motion to amend the return of service of summons and from an order granting a motion to set aside default and to vacate the judgment.

On the trial of the motion to vacate the judgment, it was the theory of defendant that the court never acquired jurisdiction because of the insufficiency of the proof of service of summons. The service was constructive, and consisted of a publication of the summons and the mailing of a copy thereof and of the complaint to the address of the defendant at her residence in Whittier, California. The defect in the affidavit of service was that it stated affiant mailed it on March 25, 1916, whereas the suit was instituted and summons issued on February 25, 1916. The statute (paragraph 448 Civil Code) requires the copies to be mailed forthwith if defendant's post-office address is known to plaintiff and this was not complied with if the date of mailing fixed in the affidavit was correct. Plaintiff contends that a clerical mistake was made in drafting the affidavit, by inserting March 25th instead of February 25th, and, by motion supported by affidavit, asked permission of the court to correct the mistake. The refusal of the court to permit the amendment is assigned as error.

Clerical mistakes of the kind claimed not infrequently occur by inadvertence or carelessness. The return of service was sworn to March 29th, and readily it will be seen that in drafting the affidavit the current month might not unnaturally displace any month ante or post. Besides the affidavit was made by an attorney who would know that the mailing of process on March 25th would not be a compliance with the law requiring that it be done forthwith.

The showing in resistance to the motion to amend was that the copies of summons and complaint were not received by defendant. This might be, and still it would not be proof, or but slight proof, that they were not mailed. The testimony of failure to receive is negative in its nature, and ought not to prevail over the positive sworn statement of posting. The one is not inconsistent with the other. Both could be true. The packet might have been lost or destroyed.

Amendments such as requested are authorized to be made under the direction of the court. Paragraph 455, Civil Code. It is not an absolute right to be exercised without leave of the court. If the claimed mistake or informality in the return, either on the face of the return or from extrinsic evidence, is shown to be erroneous, the duty of the court to permit correction is plainly imperative. As a matter of practice, we believe the permission to amend is ussually granted. It is the fact of service and not the return of service that confers jurisdiction. Ranch v. Werley (C.C.), 152 F. 509-515; Herman v. Santee, 103 Cal. 519, 42 Am. St. Rep. 145, 37 P. 509. We think, under the circumstances, the court should have granted the right to amend the affidavit of service, nunc pro tunc, as of the date of the judgment, and in the further consideration of the case we shall regard the correction as having been made.

The action, which is one for divorce, was instituted February 25, 1916, in the superior court of Pima county, alleging desertion. Service upon defendant was had by publication and by mailing a copy of summons and complaint to defendant at her residence, Whittier, California. In due course, defendant's default was entered, and on May 16, 1916, plaintiff submitted evidence in support of his allegation, whereupon judgment dissolving the marriage relation between plaintiff and defendant was entered.

Thereafter, on November 13, 1916, defendant filed her motion asking that default be set aside and judgment vacated on two grounds: First, because she was not served with process and had no notice or knowledge of the institution or pendency of the action in Pima county; and, second, because the judgment was obtained by fraud, in that at the time of the institution of the action in Pima county and at the time of the entry of judgment a suit was pending in the superior court of Maricopa county between the same parties, wherein plaintiff was seeking a divorce from defendant, and that this latter suit was still pending and undisposed of, which fact was known to the plaintiff and his attorney. In support of the motion, defendant filed affidavits of herself and John Crook, her father, and the mail carrier at Whittier, showing that no copy of the summons and complaint was ever received by defendant, although her residence was well known to plaintiff. Appended to the motion, and as a part thereof, were also copies of the files in the divorce suit which was commenced June 2, 1915, by plaintiff against the defendant, alleging desertion and cruelty, in Maricopa county, as follows: Complaint and amended complaint; answer denying desertion and cruelty and praying for dismissal of action at plaintiff's costs, for suit money and for attorneys' fees; motion for an order of the court requiring plaintiff to pay defendant as attorneys' fees the sum of $300 in making her defense.

About this time, or soon thereafter, the attorney, a resident of Phoenix, who brought the action in Maricopa county, withdrew from the case and plaintiff's substituted attorney living at Tucson, Pima county, took full charge. He wrote letters to the clerk of the superior court of Maricopa county and to the attorney for the defendant requesting that the hearing on the motion for attorneys' fees be continued to be taken up on a trial of the case on its merits, and was granted two such continuances. Being advised that the motion for attorneys' fees was set for hearing October 16, 1915, he wrote to the clerk on October 15, as follows: "Please enter my appearance as attorney for O. J. Crook, the plaintiff herein, and dismiss plaintiff's complaint without prejudice." This request to dismiss was received by the clerk on October 16th and was filed, but was not granted, of which the clerk advised plaintiff's attorney, stating that the court would not dismiss until the motion for suit money was withdrawn or otherwise disposed of. On the same day the court entered an order requiring plaintiff to pay defendant $300 as attorneys' fees, together with the sum of $5, costs of suit.

The attorney for the plaintiff and the attorney for the defendant kept up an intermittent correspondence about the judgment for $300 attorneys' fees, until January 20, 1916; the status of the case on the Maricopa docket being unchanged at that time or since by any action or order of the court. It is admitted, however, that the plaintiff paid the defendant the $300 assessed against him as attorneys' fees, and we assume, although it is not so shown, that it was paid prior to February 25, 1916, the date of filing suit...