Cubbison v. Cubbison
| Decision Date | 14 January 1935 |
| Docket Number | Civil 3474 |
| Citation | 40 P.2d 86,45 Ariz. 14 |
| Parties | LODELLE CUBBISON, Appellant, v. WALTER M. CUBBISON, Appellee |
| Court | Arizona Supreme Court |
APPEAL from an order of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Order reversed and case remanded, with instructions.
Mr Raymond H. Alexander, for Appellant.
Messrs Armstrong, Kramer, Morrison & Roche, for Appellee.
This is an appeal from an order denying a motion to vacate a judgment, and from the judgment itself. In order that the situation and the legal questions involved may be understood we think it best that we first state the facts. Both counsel for plaintiff and defendant have in their briefs referred to many alleged facts which do not appear in the record; but we, of course, cannot consider these, and since no reporter's transcript was brought up, and the record is apparently incomplete otherwise, our statement of facts is based, as it must be, solely on the pleadings, exhibits, and minutes of the trial court, which are properly before us. From this record it appears that Walter M. Cubbison, hereinafter called plaintiff, brought suit for divorce against Lodelle v. Cubbison, hereinafter called defendant. The complaint set up in substance that they had been married for some twenty-three years and had lived within the jurisdiction of the trial court from the 1st day of June, 1927, to the 1st day of December, 1932; but that thereafter, while plaintiff continued to reside in Phoenix, defendant took up her residence in Ohio. There was a further allegation that there were no children living of the marriage, and that "said plaintiff and defendant have during the said period of their married life accumulated the following described property" setting up an interest in certain real estate, two paid-up building and loan certificates, and various miscellaneous personal property. It was also alleged that all of said property was purchased with compensation which the plaintiff had received as the result of an accident which occurred to him during coverture. Then followed an allegation of cruelty involving various acts and the usual prayer for divorce and a proper distribution of the community property.
Summons was issued on January 19, 1933, and a restraining order was granted on the same day, prohibiting defendant from disposing of any of the personal property described in the complaint.
The next thing which appears in the record is an insanity complaint against defendant, signed by plaintiff, and an order of the superior court of Maricopa county, adjudging defendant to be insane, and committing her to the state hospital. Some five days later, and on February 13th, an affidavit of service of summons on defendant by registered mail was made and filed; the registry return receipt showing that she had received the summons in Ohio on January 31st.
We next find a stipulation, signed by the attorneys for the plaintiff and by another local member of the bar, as attorney for the defendant. This stipulation was dated March 25, 1933, and filed March 27th. It provided that all proceedings in the divorce case would be suspended for a period of four months, after which the defendant might answer, or in failure of an answer the plaintiff might have, upon three days' notice to defendant, a default entered and proceed with the trial of the case. There were further stipulations in regard to the payment of certain moneys from the plaintiff to the defendant, and the property rights of the parties were to be held in status quo during the pendency of the stipulation, and any amount paid by plaintiff to defendant under the stipulation was to be taken into consideration in a final settlement of property rights. Subdivision 5, rule 5 of the Uniform Rules for the Superior Court in force at that time, provided as follows: "(5) In all cases of divorce the attorneys appearing for a defendant who has not been personally served shall by affidavit show their authority to act for such defendant." Service by registered mail is not personal service. Levinson v. Oceanic Steam Nav. Co., 15 Fed. Cas. 422, No. 8292; Bernath v. kolosky et al., 82 Okl. 190, 200 P. 147. No affidavit such as is required by this rule appears in the record, nor is there anything to show what authority the attorney had to appear for the defendant in making the stipulation above referred to, so we cannot consider it as of any effect in the case.
The next thing in the record is another complaint in lunacy against the defendant, signed by plaintiff, and filed June 7th. This was heard before another judge of the superior court from the one who heard the first complaint, and was dismissed.
On July 11th the record shows that plaintiff appeared with his counsel, defendant not being represented, and her default for failure to answer was duly entered, and evidence being heard by the court, an order for judgment in favor of plaintiff was made. On July 31st a formal written judgment having been presented to the trial judge in accordance with the Uniform Rules, judgment was rendered in favor of plaintiff, granting him a divorce and awarding him all of the property referred to in the complaint.
On August 12th R. H. Alexander appeared before a third judge of the superior court, in the capacity of amicus curiae, and moved the restoration of defendant to competency, representing that she had been adjudged insane on February 8th and committed to the state hospital, but that she had been discharged from said hospital by the authorities thereof on March 18th as being sane; but there is nothing in the record except his unverified motion to show the alleged discharge. Defendant also appeared in person before the court for examination as to her sanity, and an order was made by this judge finding defendant sane and restoring her to competency. Thereafter she personally filed a motion to set aside the judgment in personally filed a motion to set aside the judgment in which she set up (a) that there had never been any proper service of summons; (b) that the time for answer to the summons had not expired for the reason that before thirty days from its service had elapsed she had been adjudged insane and that she had not been restored to competency until after default had been entered and the judgment rendered; (c) that she was not represented at the trial of the case; (d) that she was never given the three days' notice in regard to the entry of default, as required by the stipulation on file; (e) that the property adjudged to plaintiff was, as a matter of law, community property and could not therefore be given him; and (f) that the acts of cruelty set up in the complaint occurred when or immediately before she was adjudged insane. This motion was supported by affidavit. The matter was heard before the...
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Frame v. Hudspeth, 1966.
...Daly v. United States, 7 Cir., 33 F.2d 443; In re Kehler, 2 Cir., 159 F. 55; State v. McMurry, 61 Kan. 87, 58 P. 961; Cubbison v. Cubbison, 45 Ariz. 14, 40 P.2d 86; State v. Green, The record shows that when the petitioner was arraigned on the indictments, the Assistant United States Attorn......
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Cooner v. Board of Educ., 210
...a statement of facts from the pleadings, exhibits, minute entries, and the judgment, however, for purposes of review. Cubbison v. Cubbison, 45 Ariz. 14, 40 P.2d 86 (1935). The Arizona Supreme Court has held that in the absence of a reporter's transcript or an appropriate substitute, the rev......
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