Daly v. Okamura
| Decision Date | 14 March 1923 |
| Docket Number | Civil 2049 |
| Citation | 213 P. 389,25 Ariz. 50 |
| Parties | F. E. DALY, Appellant, v. FRANK OKAMURA and H. YAMAMOTO, Appellees |
| Court | Arizona Supreme Court |
APPEAL from an order of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Order setting aside judgment affirmed and cause remanded for further proceedings.
Mr. C H. Young and Mr. Weldon J. Bailey, for Appellant.
Mr. H A. Wardenburg, for Appellees.
This is a suit upon three promissory notes for $600 each, dated November 1, 1919, and due, respectively, November 1, 1920 February 1, 1921, and May 1, 1921. The defendants, Frank Okamura and H. Yamamoto, were the makers and one Peter Kortsen the payee of notes. The plaintiff, F. E. Daly, alleges in his complaint that he is the owner and holder of notes, for value. The complaint was filed and summons issued November 21, 1921. Service of summons upon defendants was had in Maricopa county on November 22d. December 13th, the defendants failing to appear and answer, plaintiff applied to the clerk of the court to enter their default, which was done, and on the same day the court took evidence and formally entered judgment against the defendants for the full amount of plaintiff's demand. January 17, 1922, the defendants, through their attorney, made application to the court to vacate and set aside the default judgment. This application or motion was supported by the affidavit of such attorney, and was to the effect that in 1919 defendants had leased from Kortsen and one Laura Haigler 160 acres of farming land, and made and delivered to Kortsen the three notes sued on as part payment for the rental of the second year of such lease; that at the beginning of the second year of said lease defendants were notified and required by Haigler, who was the owner of the leased premises, to quit the same immediately, which they did; that Haigler, who had also been given notes for her part of the second year's rent, when defendants surrendered possession of the premises, canceled and returned to defendants her said notes; that the Haigler and Kortsen notes were in payment of rent for the second year of the lease; that the premises were surrendered by defendants upon the request of the lessors Haigler and Kortsen; and that the notes sued on were past due when assigned to plaintiff.
The reason given in affidavit for the failure to answer within the time allowed by law seems to have been the inability of the defendants and their attorney to understand each other, the defendants being Japanese with little knowledge of the English language or the laws of the country. Indeed, the attorney states in his affidavit that defendant Okamura brought to his office a copy of complaint and summons on December 5, 1921, and stated, in answer to questions, that he owed the money and had no defense.
Upon this showing the court vacated and set aside the judgment and gave defendants ten days in which to file answer. The answer was duly filed, and in it, in elaboration of what was contained in affidavits, is set out the substance of the lease contract between defendants and Haigler and Kortsen their coming together and settling their differences by the defendants...
To continue reading
Request your trial
-
Puterman v. Puterman
...as peculiarly within the rule conferring authority on courts to open, correct, or vacate their own judgments." So in Daly vs. Okamura et al., 25 Ariz. 50, 213 P. 389 where the court by its order set aside a default taken against Japanese defendants, this action was held proper on plaintiff'......
-
Mortgage Co. Holland America v. Yost
...In the furtherance of justice a court may set aside a judgment and is not bound by statutory grounds only. (C. S., sec. 6726; Daly v. Okamura (Ariz.), 213 P. 389.) facts asserted by these defendants, and upon which their motion is based, are not controverted, in a single instance, by the co......
-
Cota v. Southern Arizona Bank & Trust Co.
...N.W. 369 (1929). However, the lack of the ability to speak or read English can be taken into account by the court. See Daly v. Okamura, 25 Ariz. 50, 213 P. 389 (1923). And, where a person's ignorance of the English language has prevented him from discovering that legal proceedings have been......
-
Brown v. Beck, 4860
... ... in relieving parties of defaults caused by inadvertence and ... excusable neglect * * *.'" ... From ... our case of Daly v. Okamura, 25 Ariz. 50, 213 P ... 389, 390, we quote: ... "* ... * * The liberality of the statute authorizing the court ... 'upon ... ...