Magidow v. Coronado Cattle Co.

• Decision Date: 26 December 1972
• Docket Number: CA-CIV,No. 1,1
• Citation: 504 P.2d 961,19 Ariz.App. 38
• Parties: Aaron MAGIDOW and Eloise Magidow, Petitioners, v. CORONADO CATTLE COMPANY, Real Party in Interest, and the Honorable Fred J. Hyder, Judge of the Maricopa County Superior Court, Respondents. 2187.
• Court: Arizona Court of Appeals

Page 961

504 P.2d 961

19 Ariz.App. 38

Aaron MAGIDOW and Eloise Magidow, Petitioners, v. CORONADO CATTLE COMPANY, Real Party in Interest, and the Honorable Fred J. Hyder, Judge of the Maricopa County Superior Court, Respondents.

No. 1 CA-CIV 2187.

Court of Appeals of Arizona, Division 1, Department B.

Dec. 26, 1972.

Lewis & Roca, by Paul G. Ulrich and David, L. Cocanower, Phoenix, for petitioners.

Robertson, Molloy, Fickett & Jones, P. C., by Charles D. Wahl, Tucson, for respondents.

HAIRE, Chief Judge, Division 1.

This is a special action seeking reversal of an order of the Superior Court refusing to dismiss a complaint in a pending civil action as to petitioners here, Aaron Magidow and Eloise Magidow. This Court is asked to direct the Superior Court to dismiss to complaint as to them and to quash the service of summons on them, on the grounds of lack of jurisdiction over their persons and insufficiency of service of process.

The pending superior court action involves a complaint filed by Coronado Cattle Company, an Arizona corporation, respondent real party in interest herein, seeking to recover the purchase price of certain cattle sold by it to Hi-Pro Meat Packing Company, a California corporation, which is one of the defendants in that action. Hi-Pro is not licensed to do business in Arizona. Coronado made three shipments of cattle from a feedlot of its agent, Arlington Cattle Company, in Arizona to Hi-Pro in California pursuant to an order placed by an agent of Hi-Pro. Hi-Pro then issued two checks in payment therefor which were subsequently dishonored, and refused to pay a draft for the third shipment, so that Coronado has never received any payment for the cattle. The two checks were drawn in California on HiPro's corporate account in a California bank, were signed by Aaron Magidow in his capacity as its president, and were sent to Arlington in Arizona. The complaint names as defendants the partners in Arlington Cattle Company, Montebello Meat Packing Company (a corporation formerly owned by Aaron Magidow but sold prior to the transactions here involved), Hi-Pro Meat Packing company, and twenty fictitious individual and two fictitious corporate defendants. The fictitious individual defendants are identified in the complaint as John Does 1 through 10 and Jane Does 1 Through 10, and Count I of the complaint alleges that John Doe 1 and Jane Doe 1 are residents of Arizona or have caused an event to occur in Pima County, Arizona. Nowhere in the complaint is there any other allegation whatsoever of any specific act by John Doe 1 or Jane Doe 1, or any allegation of the event which they purportedly caused to occur in Arizona. It appears from the documents submitted to the trial court in connection with the motion to dismiss that although Aaron Magidow was president and 'general manager' of Hi-Pro, neither of the Magidows was a director or a shareholder of Hi-Pro, and neither was an officer thereof except as just stated.

Petitioners here are not named as defendants in the complaint under their own names. They were each personally served in California with a summons (and a copy of the complaint) in this action which was addressed to and specifically identified the persons being served as 'John Doe 1 and Jane Doe 1, now known to be: Aaron Magidow and Eloise Magidow'. The Magidows appeared specially in the trial court and moved to dismiss the complaint as to them on the basis of lack of jurisdiction over their persons and for insufficient service, and to quash the service of the summons. In support of their motion, petitioners filed an affidavit of Aaron Magidow reciting that both of the Magidows were residents of California and not of Arizona at all relevant times, which recital is uncontroverted. They argued that being non-residents, and not having been alleged to have done any specific act in or to have had any minimum contacts with Arizona, the service of process on them outside of Arizona did not invest any jurisdiction over their persons in the Superior Court of Maricopa County, Arizona. The trial court denied the motions, and thereafter petitioners brought this special action to review that order. Petitioners claim that the court had no jurisdiction over them and that by being made to proceed in and defend the superior court action they would be put to substantial and unnecessary expense and that their constitutional rights would be violated.

Our first determination must be whether a special action is appropriate to review the question of jurisdiction in this matter. We hold that it is, as in our opinion petitioners' ultimate right to appeal in this matter would not be an equally plain, speedy and adequate remedy as compared to a review at this stage by special action. Johnson v. Superior Court of Maricopa County, 14 Ariz.App. 329, 483 P.2d 561 (1971). If the trial court does not actually have jurisdiction, it would surely be unjust and unreasonable to put petitioners to the expense and delay of a full fledged lawsuit before determining that question on appeal. We therefore accept jurisdiction in this matter.

The question then is whether under the facts of this case an Arizona court could acquire any jurisdiction over the petitioners by service of process on them in California. The facts as recited above have been taken only in small part from the very sketchy complaint and for the most part from the evidentiary materials submitted in opposition to petitioners' motion to dismiss in the trial court. Petitioners assert initially that these materials, and in fact the actual facts of the case, cannot be considered in determining jurisdiction at this stage, but that only the allegations of the complaint as served should be determinative of this question. They argue that since they were specifically identified as John Doe 1 and Jane Doe 1 in the summons, and since there are no allegations in the complaint as served concerning any acts or any minimum contacts by John Doe 1 and Jane Doe 1 with Arizona, the complaint shows on its face that there is no jurisdiction, and the trial court can go no further. While it is true that, in order for the trial court to acquire jurisdiction over a defendant designated under a fictitious name, the person being served must be given notice that he is being served in place of a particular fictitious defendant named in the complaint, Safeway Stores, Inc. v. Ramirez, 99 Ariz. 372, 409 P.2d 292 (1965), it is not the mere allegations of the complaint but the actual facts of the case which must be considered in determining jurisdiction. To determine these facts, the court may consider affidavits and other evidentiary material submitted. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Pegler v. Sullivan, 6 Ariz.App. 338, 432 P.2d 593 (1967). If the law were as petitioners contend, they would be precluded from filing the affidavit which they did file to establish their non-residence in Arizona, which is the foundation for their assertion of lack of jurisdiction.

However, a review of the facts of this case as presented by the record thus far does indicate that the trial court had no jurisdiction over the Magidows. Keeping in mind that the trial court is purporting to exercise In personam jurisdiction over these two persons as individuals, there is simply...