Gutierrez v. Romero

• Decision Date: 28 November 1922
• Docket Number: Civil 1941
• Citation: 24 Ariz. 382,210 P. 470
• Parties: ELOISA GUTIERREZ, Appellant, v. FABIAN ROMERO, Defendant; CONSOLIDATED NATIONAL BANK OF TUCSON, a Corporation, and SECURITY BANK & TRUST COMPANY, a Corporation, Garnishees, Appellees
• Court: Arizona Supreme Court

210 P. 470

24 Ariz. 382

ELOISA GUTIERREZ, Appellant, v. FABIAN ROMERO, Defendant; CONSOLIDATED NATIONAL BANK OF TUCSON, a Corporation, and SECURITY BANK & TRUST COMPANY, a Corporation, Garnishees, Appellees

Civil No. 1941

Supreme Court of Arizona

November 28, 1922

APPEAL from a judgment of the Superior Court of the County of Pima.Samuel L. Pattee, Judge.Affirmed.

STATEMENT OF FACTS.

The appellant, as plaintiff, having on June 30, 1920, obtained a judgment in the superior court of Pima county, Arizona, for $12,500 against Fabian Romero, as defendant, on August 25 1920, in said action, made in proper form, application for writ of garnishment against the Consolidated National Bank of Tucson and the Security Bank & Trust Company of Tucson, among others.The writ issued August 26th, and on the same day was returned by the sheriff of Pima county showing proper service upon said garnishees.On September 9, 1920, upon application of appellant, the clerk of the court made a minute entry reciting the failure of the garnishees, Consolidated National Bank and Security Bank & Trust Company, to appear and answer within the time allowed by law, and entered their default.February 9, 1921, the date the garnishees first obtained actual knowledge of the default, they filed their motions supported by affidavits, to have the default entered by the clerk set aside, the affidavits setting forth that neither bank, on the twenty-sixth day or since, was indebted to Romero, and had no effects on said date, or since, belonging to him, and denied knowledge of any other person or persons owing him or having effects belonging to him.March 2, 1921motions to set aside default were by the court set for hearing March 5th.On March 3d the court entered judgment for the appellant against garnishees for $12,535.45, being full amount of judgment against Romero, with costs.March 4th amended motions to set aside the default entered by the clerk and the default judgment entered by the court were filed.These motions, original and amended, were heard on March 5th, and taken under advisement until March 8th, when an order was made granting motions to vacate default and judgment.Appeal is from this order.The officers of the two garnishee banks whose affidavits were filed in support of motions to set aside default and judgment gave as excuses for not answering the writ within the ten days allowed by law that the writs were misplaced and inadvertently overlooked, and that the failure to answer was not intentional.

Mr. L. W. Jaycox and Mr. James D. Barry, for Appellant.

Mr. Francis M. Hartman and Mr. Paul J. Cella, for Appellee Consolidated National Bank of Tucson.

Messrs. Kingan, Campbell & Conner, for Appellee, Security Bank & Trust Co.

OPINION

ROSS, C. J.

(After Stating the Facts as Above.)It is the contention of appellant, and this contention is the sole basis of her assignments, that the showing of appellees on their application to vacate does not make out a case of mistake, inadvertence, surprise or excusable neglect, or one of good cause shown, and that the court abused its discretion in granting the motion to set aside the default judgment.Paragraph 600, Civil Code of 1913, authorizes the court to relieve from a judgment for mistake, inadvertence, surprise or excusable neglect, or for good cause shown, to modify or set aside a judgment, order or other proceedings.A casual reflection on the showing made by garnishees is enough to reject it as insufficient to bring them within the first grounds enumerated by the statute.The omission to answer the writ within the time allowed by law was not "mistake, inadvertence, surprise or excusable neglect" as those terms have been defined by the courts.Lynch v. Arizona Enterprise Min. Co.,20 Ariz. 250, 179 P. 956;Missouri, K. & T.R. Co. v. Ellis,53 Okl. 264, L.R.A. 1916E, 100, 156 P. 226;Marsh v. Griffin,123 N.C. 660, 31 S.E. 840.

In this case, however, at the time the court entered judgment against the garnishees, there were on file their answers, in connection with the motion to vacate the so-called default, categorically answering the interrogatories of the garnishment writs, showing no liability.In other words, the court had before it, although filed somewhat tardily, a meritorious answer, and one relieving the garnishees, if uncontroverted, from all liability, at the very time the default judgment was entered.An examination of the garnishment statute(paragraph 1439, Civ. Code) will convince one that the power to enter default of a garnishee is placed with the court and not the clerk.The statute is as follows:

"Should the garnishee fail to make answer to the writ within the time specified in the writ, it shall be lawful for the court, at any time after judgment shall have been rendered against the defendant, to render judgment by default against such garnishee for the full amount of such judgment against the defendant, with all accruing interest and costs."

The clerk may, in the instances mentioned in another part of the Civil Code(paragraphs 563, 564), enter the default of a defendant failing to appear and answer within the time specified in the summons, but this power is purely statutory, and may not be extended to include cases not intended.Since the clerk had no authority under the law to enter the default, his doing so could have had no effect on the right of the garnishees to answer.

Although the garnishees had not answered within the time specified in the writs, they had answered at the time the power of the court was exercised to render judgment by default, and the answers contained perfect defenses.Under a...