Faltis v. Colachis
| Decision Date | 18 February 1929 |
| Docket Number | Civil 2787 |
| Citation | 35 Ariz. 78,274 P. 776 |
| Parties | STEVE FALTIS and VIDAK SREDANOVICH, Appellants, v. S. C. COLACHIS and ELEANOR COLACHIS, His Wife, Appellees |
| Court | Arizona Supreme Court |
APPEAL from an order of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Order appealed from affirmed.
Messrs Sutter & Roche, for Appellants.
Messrs Swenson & Swenson, for Appellees.
This is an appeal from an order of the superior court of Maricopa county, denying a motion to set aside a certain judgment rendered in that court. In order that we may properly discuss the matter it is necessary that we state with some particularity the proceedings in the original action in the lower court, as shown by the record before us.
On March 22d, 1928, appellees herein filed their complaint against appellants, summons was duly served, and the latter employed counsel who resided in Cochise county to represent them in the matter. On April 11th a motion to strike various portions of the complaint was filed, which motion was argued and denied on April 17th, counsel for all parties being present, and five days' time was allowed for answer. April 23d, appellants filed a general demurrer to the complaint, which was overruled on Monday, May 7th. June 13th no further pleadings having been filed by appellants, counsel for appellees appeared, and the minutes show: "This cause comes on regularly for trial before the court without a jury." Various oral and documentary evidence on behalf of appellees was introduced, at the conclusion of which it was ordered the matter was continued subject to call. On June 18th, on motion of counsel for appellees, notice of the pendency of which motion was received by counsel for appellants June 15th, a formal order was entered, setting the case for trial June 25th. On June 25th appellees appeared, but there was no appearance for appellants. Evidence was introduced on behalf of the former, and at the conclusion thereof it was ordered that appellees have judgment as prayed for in the complaint. On July 9th a motion to vacate the judgment under paragraph 600, Revised Statutes of Arizona of 1913, Civil Code, on the ground that the judgment was obtained through the mistake, inadvertence, surprise, and excusable neglect of appellants and their attorneys, duly supported by affidavits setting up a meritorious defense, was filed. On July 16th, the matter was presented to the trial court and argued, all parties being duly represented, and the motion was denied. From this order an appeal has been taken.
Briefly stated, it is the contention of appellants that, after the filing of their general demurrer on April 23d, they had no legal notice that the demurrer had been overruled, or that the case was at issue, or could or would be tried, until after the issue of an execution upon the judgment of June 25th, and that a refusal to set aside a judgment obtained under such conditions was an abuse of the discretion of the trial court.
In all proceedings in a court of justice the parties to the litigation are entitled to notice, actual or constructive, of every step to be taken in the cases in which they are interested, and, if anything be done affecting their rights without such notice, and they apply in a timely manner for redress, it is an abuse of discretion for the trial court to refuse to grant it. Garner v. Towler, 25 Ariz. 101, 213 P. 390; 42 C.J. 480, 481.
On the other hand, if parties have notice of any contemplated action, and, without a sufficient excuse, neglect to appear and protect their rights, they cannot complain of any order or judgment rendered against them. Redding Gold & Copper Min. Co. v. National Surety Co., 18 Cal.App. 488, 123 P. 544.
As was stated in the case of Lynch v. Arizona Enterprise Mining Co., 20 Ariz. 250, 179 P. 956:
"A defendant applying to have a default against him set aside must show, not only that he has a meritorious defense, but that he has been without fault in failing to interpose it by plea."
It is obviously impracticable that all litigants be present at every session of the court in which an action affecting their interests is pending, and it is therefore general that some regular method is established whereby the parties may know the times when matters in which they are concerned will be presented. This is usually covered by some specific rule of the court or else by long-established custom. The superior court of Maricopa county is vested by statute with the right of making rules for the governance of its own business, and, in the exercise of this power, it has provided as follows:
There is no provision in the rules that notice of the regular Monday call of the calendar or of cases being placed thereon be given to counsel except by posting on the list, nor is it the custom of the court or the clerk thereof to send out any notice whatever of this call or any action taken thereon.
Rules adopted by the court, so far as they are not repugnant to the organic laws, have all the effect of law, and must be complied with. 15 C.J. 909. And all counsel practicing before the court are of course bound to take notice of its rules, whether they reside in the same county as that in which the court sits or in some other county of the state. Dusy v. Prudom, 95 Cal. 646, 30 P. 798; Advance Veneer & Lumber Co. v. Hornaday, 49 Ind.App. 83, 96 N.E. 784.
Counsel for appellants were therefore advised that their demurrer, filed April 23d, would be called up for hearing at the regular call of the law and motion calendar each Monday thereafter until disposed of, and were bound at their peril to watch the call of such calendar to determine what action had been taken thereon. They admit there is no provision in such calendar to determine what action had been the rules of the superior court of Maricopa county requiring that they be given notice of the action taken by the court on any matters pending, and that there is no custom in said county requiring the clerk or any other person connected with the court to give it, but urge that it has for many years been the custom in the county of their residence that such notice be given counsel by the clerk of the court, and that, therefore, failure on their part to watch the calendar of the court in Maricopa county was excusable.
Such a plea would be...
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