Lynch v. Arizona Enterprise Mining Co.

• Decision Date: 16 April 1919
• Docket Number: Civil 1654
• Citation: 179 P. 956,20 Ariz. 250
• Parties: JOSEPH E. LYNCH, Appellant, v. THE ARIZONA ENTERPRISE MINING COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

179 P. 956

20 Ariz. 250

JOSEPH E. LYNCH, Appellant, v. THE ARIZONA ENTERPRISE MINING COMPANY, a Corporation, Appellee

Civil No. 1654

Supreme Court of Arizona

April 16, 1919

APPEAL from an order of the Superior Court of the county of Yuma vacating a judgment. Frank Baxter, Judge. Reversed.

Messrs Cox, Moore & Cox, for Appellant.

Mr Fred L. Ingraham and Mr. H. Wupperman, for Appellee.

OPINION

BAKER J.

This is an appeal from an order vacating a judgment and opening a default. The facts are these: The plaintiff (the parties will be designated in this court as they were designated in the court below) sued the defendant to recover a judgment for money loaned and for work and labor done and performed. The complaint was filed on November 15, 1917. Summons issued on the day the complaint was filed. The defendant is a corporation, and, in conformity with the statute, had appointed John O. Dunbar, of Phoenix, as its statutory agent, upon whom service of all process might be had. The summons was duly served on the said Dunbar on November 16, 1917. The defendant failed to answer within the time required by the statute, and on December 19, 1917, its default was entered. Thereafter, to wit, on December 28 1917, proofs were made, and a final judgment against the defendant was entered in the case. On January 19, 1918, the defendant made a motion to vacate and set aside the default judgment, and supported the motion by the affidavit of its president and general manager, and tendered an answer and cross-complaint. The plaintiff resisted the motion and filed counter affidavit. After a hearing on the motion and application, the court granted the same, and made an order vacating the default judgment and allowed the defendant to answer. From this order the plaintiff prosecutes this appeal.

The statute under which the defendant's motion was made is as follows:

"The court may, at any time within six months after the making of entry of any judgment, order or other proceeding, relieve a party from any such judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; or may, for good cause shown, modify or set aside its judgments, orders or proceedings." Paragraph 600, Civil Code 1913.

Two principal grounds are assigned in the motion why the default judgment should be vacated and set aside: (1) Collusion between the plaintiff and his attorneys and the statutory agent to prevent notice of the pendency of the suit from reaching the defendant, so as to allow the plaintiff to take the default judgment; (2) surprise, inadvertence and excusable neglect.

The court made no finding upon the charge of collusion, and it is therefore unnecessary for us to pass upon that issue. The question is not before us.

The court, however, did make a finding upon surprise, inadvertence and excusable neglect. The finding appears in the order vacating the judgment, and it is stated in the following language:

"It appearing to the court that summons was duly served upon the statutory agent of the defendant company, and that said agent failed to apprise said company of said summons, and that thereby and by reason of surprise and inadvertence resulting from such failure of said agent said company failed to make answer within the statutory time, and that such failure on the part of said company, if the same constituted neglect on the part of the defendant, was constructive rather than actual, and therefore excusable."

This finding is based wholly upon the affidavit of the statutory agent which, so far as material, is as follows:

"John O. Dunbar, being first duly sworn, says that he . . . is statutory agent for the Arizona Enterprise Mining Company, a corporation, defendant in the above-entitled action; that at or about the hour of 1:30 o'clock P.M. on the 16th day of November, 1917, he was served as statutory agent for the Arizona Enterprise Mining Company, a corporation, with a copy of said summons and complaint in the above-entitled cause, by Beryl Proutty; that he still has in his possession said copy of said summons and complaint, and has had [it] in his possession since the same was served upon him, for the reason that he did not know the address of the said Arizona Enterprise Mining Company, a corporation, or the address of its officers, and was therefore unable to notify them of the pendency of the above-entitled action."

It is a rule of universal application that a motion to vacate a default judgment on the grounds of surprise, inadvertence and excusable neglect is addressed to the sound discretion of the trial court. Unless there has been an abuse of such discretionary power, the appellate court will not interfere with the action of the trial court in passing upon such motion. But the discretion thus vested in the court is a legal, and not an arbitrary or personal, discretion. There must be some legal justification for the exercise of the power, some substantial evidence to support it. It is said in Arizona Mining & Trading Co. v. Benton, 12 Ariz. 373, 100 P. 952:

"Whether or not a defendant shall be permitted to open a default or set aside a judgment lies in the wise discretion of the trial...