Einboden v. Martin

• Decision Date: 07 June 1950
• Docket Number: No. 5199,5199
• Citation: 70 Ariz. 245,219 P.2d 330
• Parties: EINBODEN et al. v. MARTIN et al.
• Court: Arizona Supreme Court

Page 330

219 P.2d 330

70 Ariz. 245

EINBODEN et al. v. MARTIN et al.

No. 5199.

Supreme Court of Arizona.

June 7, 1950.

Fred W. Fickett, William S. Dunipace, Robert S. Tullar, Tucson, for appellants.

Oliver J. Laubscher, Tucson, for appellees.

UDALL, Justice.

Plaintiffs (now appellees) Le Roy S. Martin and Lettie H. Whitcomb, a single woman, filed suit against defendants (now appellants) E. E. Einboden and Dorothy J. Einboden, his wife, and Associated Mining and Milling Company of Nevada, a copartnership, to recover unpaid monthly payments in the aggregate sum of $2,000 allegedly due under the terms of a certain written lease and option agreement. The defendants filed an answer to the complaint together with a motion for summary judgment. This motion was predicated upon the theory that the agreement, above referred to, was an outright contract of sale and purchase of real property rather than a mere lease and option agreement. A hearing was had and on August 9, 1948, the court granted defendants' motion for summary judgment resulting in a dismissal of plaintiffs' complaint, although the record showed there was an issue of fact to be determined as to whether the unilateral option to purchase had been exercised.

Fourteen days later, on August 23, 1948, the plaintiffs filed a motion to vacate and set aside the summary judgment and order of dismissal theretofore entered. The sole basis for this motion was that the court had committed legal error in construing the contract before it and in entering the original judgment. Reliance was had upon our ruling in the case of Whalley v. George, 52 Ariz. 267, 80 P.2d 449. Upon having a second look at the matter the trial court became convinced, and properly so, that the order granting the motion for summary judgment had been improvidently and erroneously entered. While somewhat dubious of its jurisdiction to correct its mistake of law, due to the lateness of the filing of plaintiffs' motion to vacate, nevertheless on October 9, 1948, the court entered the following order: 'It is ordered that the motion to vacate and set aside summary judgment be and hereby is granted, and in the event that the court does not have authority or jurisdiction to grant said motion, the court hereby vacates and sets aside its former order made herein granting defendants' motion for summary judgment, based upon the motion for summary judgment filed June 19, 1948.'

The validity of this order is the sole question raised by this appeal as no questions relative to the merits of the case are before us.

By appropriate assignments the defendants urge that the trial court erred in vacating and setting aside the summary judgment, either upon plaintiffs' motion or upon its own initiative. This for the reason, as they contend, that where, as here, there is no allegation of mistake, inadvertence, surprise, excusable neglect or fraud, the motion to set aside and vacate must be filed within ten days after the rendition of judgment and if not so filed the court is without jurisdiction to grant relief thereon, or to vacate the judgment upon its own initiative. Defendants further contend that the plaintiffs' sole remedy, at the time they filed their motion to vacate the summary judgment, was by an appeal to this court from the judgment rendered against them.

On the other hand the plaintiffs seek to uphold the validity of the order setting aside the summary judgment by asserting that their motion to vacate the judgment theretofore entered was not predicated upon Sec. 21-1308, A.C.A. 1939, which in so far as pertinent reads: '* * * Motions * * * to set aside a judgment, shall be made within ten days after the rendition of judgment, * * *' but rather that it came under the 'saving clause' of Sec. 21-1502, A.C.A. 1939, reading: '* * * This rule (relieving a party within a period not exceeding six months from a judgment taken against him by mistake, inadvertence, surprise or excusable neglect. Rule 60(b)) does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order or proceeding, * * *.' (Emphasis supplied.)

The first contention being that a motion to vacate, as filed in the present case, is an action to relieve a party from a judgment within the meaning of this section and that it was one of the manifest purposes of this so-called 'saving clause' to preserve intact and unimpaired the inherent powers of the courts to entertain remedial actions for relief against judgments traditionally recognized at common law, such as a bill of review in equity, actions for writ of audit querela and bills of error 'coram vobis' or 'coram nobis' at law. Secondly it is urged that the adoption of the rules of civil procedure in 1940 did not affect, interfere with, or curtail the common-law power of the court, acting upon its own initiative, to deal with situations where in justice and good conscience relief should be granted from manifest error. We are in effect asked to write back into the rules that portion of Sec. 3859, R.C.A. 1928, which provided that during a six month period 'The court * * * may, for good cause shown, modify or set aside its judgments, orders or proceedings.', even though this statutory rule was superseded by the adoption of rule 60(b), now Sec. 21-1502, supra.

Considering first the effect of Sec. 21-1308, supra, as applied to the factual situation in the instant case, we have repeatedly held that the statutes requiring a motion to set aside a judgment or a motion for new trial to be filed within ten days, are mandatory. Daggs v. Howard Sheep Co., 16 Ariz. 283, 145 P. 140; Red Rover Copper Co. v. Hillis, 21 Ariz. 87, 185 P. 641; Peer v. O'Brien, 21 Ariz. 106, 185 P. 644, 645. The gist of these decisions are to the effect that the terms of the law must be obeyed by the court as well as by the parties; that no exceptions are to be made to this requirement of the statute; that where a motion is not filed until after the time therefor has expired, the effect is the same as if no motion were filed at all. In Peer v. O'Brien, supra, Mr. Justice Ross said a motion for a new trial (which is governed by the same statute) should have been made within ten days after judgment, and where...