Heat Pump Equipment Co. v. Glen Alden Corp., No. 7851

• Court: Supreme Court of Arizona
• Writing for the Court: PER CURIAM; BERNSTEIN
• Citation: 93 Ariz. 361,380 P.2d 1016
• Docket Number: No. 7851
• Decision Date: 24 April 1963
• Parties: HEAT PUMP EQUIPMENT COMPANY, an Arizona corporation, Appellant, v. GLEN ALDEN CORPORATION dba the Mathes Company, a division of the Glen Alden Corporation, Glen Alden Corporation, a Pennsylvania corporation, Republic Transcon Industries, a corporation, Salt River Project Agricultural Improvement and Power District, an Arizona Power District, the Blick Corporation, Appellees.

Page 1016

380 P.2d 1016 93 Ariz. 361 HEAT PUMP EQUIPMENT COMPANY, an Arizona corporation, Appellant,
v.
GLEN ALDEN CORPORATION dba the Mathes Company, a division of the Glen Alden Corporation, Glen Alden Corporation, a Pennsylvania corporation, Republic Transcon Industries, a corporation, Salt River Project Agricultural Improvement and Power District, an Arizona Power District, the Blick Corporation, Appellees. No. 7851. Supreme Court of Arizona, In Banc. April 24, 1963.

[93 Ariz. 362] Lewis, Roca, Scoville, Beauchamp & Linton, by John P. Frank, Phoenix, Johnston & Gillenwater, by Powell B. Gillenwater, Phoenix, for appellant.

Langerman & Begam, by Frank Lewis, Phoenix, for appellees.

PER CURIAM.

This appeal presents the question of the scope of this Court's rule-making power in particular reference to Rule 4(e)(2) of the Rule of Civil Procedure, 16 A.R.S., as amended July 14, 1961, and effective after October 31, 1961, relating to personal service of process out of state. ¹

Defendants-appellees, Glen Alden Corporation and Republic Transcon Industries, Inc., are foreign corporations which do not appear from the record to have agents in

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this state qualified to accept service of process. In January 1962, plaintiff-appellant made personal service on one of these appellees by registered mail under Rule 4(e)(2)(a) as amended, and on the other by direct service out of state under Rule 4(e)(2)(b), as amended. The two appellees moved to dismiss the complaint as to them on the grounds of lack of jurisdiction and insufficient service of process. The superior[93 Ariz. 363] court granted the motion, holding that the service would have been 'unquestionably impossible' prior to the amendment, and the amendment is 'invalid for the reason that it changes the substantive law rather than merely the procedural law.' Final judgment was thereupon entered in favor of the two appellees, pursuant to Rule 54(b) of the Rules of Civil Procedure, and this appeal follows.

It is conceded that the service on appellees did not comply with Rule 4(e) prior to its amendment in 1961. ² Nor is any question raised on this appeal as to compliance with Rule 4(e)(2) as amended. The sole issue is the validity of the amended rule.

Rules of practice and procedure governing the courts have been considered in this State to be essentially judicial in nature, with the power to make them inherent in the courts on the basis of the State Constitution which distributes the powers of government among the legislative, executive and judicial departments (Article III), and vests the judicial power of the state in the courts (Article VI, Section 1), Burney v. Lee, 59 Ariz. 360, 129 P.2d 308 (1942); State v. Pierce, 59 Ariz. 411, 129 P.2d 916 (1942). The statute authorizing this Court to make rules of pleading, practice, and procedure which do not abridge, enlarge or modify substantive rights (A.R.S. § 12-109) has been upheld as a withdrawal by the legislature from the rule-making field, Burney v. Lee, supra; State v. Pierce, supra. Since December 9, 1960, the Supreme Court has the express power under Article VI, Section 5, of the state constitution, A.R.S., 'to make rules relative to all procedural matters in any court.'

Thus the rule-making power of this Court extends to procedural matters. This power is consistent with that of the Supreme Court of the United States which adopted the Federal Rules of Civil Procedure on which...