Marquez v. Rapid Harvest Co.
| Decision Date | 31 December 1965 |
| Docket Number | No. 7028,7028 |
| Citation | 409 P.2d 285,99 Ariz. 363 |
| Parties | John R. MARQUEZ, by his Guardian Ad Litem, Malcolm L. Hillock, Appellant, v. RAPID HARVEST CO., a California Corporation, Appellee. PR. |
| Court | Arizona Supreme Court |
Robert N. Hillock and Malcolm L. Hillock, Tucson, for appellant.
Darnell, Holesapple, McFall & Spaid, by Richard C. Briney, Tucson, for appellee.
This case is before us on review of a decision of the Court of Appeals, Division 2, 1 Ariz.App. 138, 400 P.2d 345. Plaintiff (appellant herein) commenced an action in Superior Court on May 15, 1959, to recover for personal injuries allegedly caused by the negligence of defendant's employee. Defendant is a foreign corporation doing business in Arizona. A copy of the summons and complaint was delivered on May 22, 1959 to an employee of the defendant who was working in the Willcox area. Defendant having failed to appear or answer within the time required by law, its default was entered on June 12, 1959. The lower court heard testimony on plaintiff's application for default judgment on July 8, 1959, and on July 16 granted a judgment to plaintiff in the amount of $92,488.81, which was entered on the record the following day. A writ of execution was issued on August 24, 1959, and on August 31, 1959, defendant applied to the court below to set aside the default and vacate the judgment. Defendant's application asserted 'excusable neglect' and in addition alleged that the employee served with process was not a 'managing or general agent' upon whom process could be served under Rule 4(d) 6, 16 A.R.S. Rules of Civil Procedure.
A hearing on defendant's application was held on September 4, 1959. The testimony and affidavits presented to the lower court in support of defendant's motion to set aside the judgment disclosed the following: Defendant was notified of the judgment at its home office in Salinas, California, on July 18, 1959, by a phone call from a corporate director in Arizona who had read a newspaper account of the judgment. The employee upon whom process had been served left the defendant's employ within a few days after service of process and had failed to notify the corporation of the service.
The default judgment was set aside pursuant to Rule 60(c) 16 A.R.S. Rules of Civil Procedure, on the grounds that defendant had shown: (1) excusable neglect, (2) a meritorious defense and (3) no undue lapse of time between the default judgment and the filing of the motion to set aside the default. Defendant raised the question of jurisdiction, on the basis that the employee served with process was not a manging agent, and thus no valid service was had upon defendant. The trial court declined to rule on this question of whether defendant had been properly served.
It appears to us that the trial court should have determined the question of its jurisdiction before taking any other action. If the court had no jurisdiction because of lack of proper service on the defendant any judgment would be void, and there would be no necessity to consider a question of setting it aside on the basis of excusable neglect. For this reason the case must be returned to the trial court for a determination of this issue.
In case the court should determine that there was proper service upon defendant the question of whether the judgment should be vacated for excusable neglect would no doubt again arise. For this reason we discuss the issues presented upon the court's ruling on the motion to set aside the judgment and default on the ground of excusable neglect.
The plaintiff then appealed to the Court of Appeals which reversed the trial court's finding of excusable neglect and reasonable delay. It did, however, remand this case to the trial court for a determination as to whether the defendant's employee was a 'managing or general agent.'
The appellant assigns as error, in substance, the following:
1. The finding that failure of the defendant's employee to notify it of service of process constituted 'excusable neglect.'
2. The finding as a matter of law that the defendant exercised due diligence in seeking relief from the default judgment.
The uncontested finding that the alleged agent left the defendant's employ within a few days after service was an adequate showing of legal excuse upon which the trial court could exercise its discretion to find excusable neglect. Where an employee is about to terminate his employment within a few days, failure to notify the employer of service of process on the employee may constitute conduct of a reasonably prudent person under the same circumstances. See Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 120, 317 P.2d 550, 552 (1957). This follows the general rule that any doubt which may exist should be resolved in favor of the application, to the end of securing a trial upon the merits. 6 Moore's Federal Practice, p55.10; Hendrie Buick Co. v. Mack, 88 Ariz. 248, 355 P.2d 892 (1960).
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Price v. King
...151; Ransom v. Haner, Alaska, 362 P.2d 282, 287; Marquez v. Rapid Harvest Co., 1 Ariz.App. 562, 405 P.2d 814, later vacated in 99 Ariz. 363, 409 P.2d 285, only by reason of absence of jurisdictional notice; King v. Cardin, 229 Ark. 929, 319 S.W.2d 214; Thompson v. Laccy, 42 Cal.2d 443, 267 ......
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...under quite different facts. See United Accounts, Incorporated v. Lantz, 145 N.W.2d 488, 493 (N.D.1966); Marquez v. Rapid Harvest Co., 99 Ariz. 363, 409 P.2d 285, 287--288 (1965); Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed.2d 266 (1949). Cf. 1 Restatement 625, Judgments......
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...is not properly served with process, any resulting judgment is void and must be vacated upon request. Marquez v. Rapid Harvest Co., 99 Ariz. 363, 365, 409 P.2d 285, 287 (1965); Martin v. Martin, 182 Ariz. 11, 14, 893 P.2d 11, 14 (App.1994). Under Rule 4.2(h), Ariz. R. Civ. P., service on a ......
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