Martin v. Sears

• Decision Date: 02 May 1935
• Docket Number: Civil 3503
• Citation: Martin v. Sears, 45 Ariz. 414, 44 P.2d 526 (Ariz. 1935)
• Parties: MARY MARTIN, a Widow, FRANK MARTIN, a Widower, J. C. COULSON and POLLY COULSON, His wife, H. L. KINMAN and LILLIAN KINMAN, His Wife, and ARIZONA SASH DOOR & GLASS COMPANY, a Corporation, Appellants, v. ALMA GRACE SEARS, Appellee
• Court: Arizona Supreme Court

44 P.2d 526

45 Ariz. 414

MARY MARTIN, a Widow, FRANK MARTIN, a Widower, J. C. COULSON and POLLY COULSON, His wife, H. L. KINMAN and LILLIAN KINMAN, His Wife, and ARIZONA SASH DOOR & GLASS COMPANY, a Corporation, Appellants, v. ALMA GRACE SEARS, Appellee

Civil No. 3503

Supreme Court of Arizona

May 2, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa.Howard C. Speakman, Judge.Judgment affirmed.

Mr John C. Lee, for Appellants.

Messrs Struckmeyer & Jennings and Mr. Henry S. Stevens, for Appellee.

OPINION

LOCKWOOD, C.J.

This is an appeal from a judgment in favor of Alma Grace Sears hereinafter called plaintiff, foreclosing a mortgage on certain real estate in Maricopa county.The questions involved are legal only, and are based on the following facts:

Mary Martin, a widow, and one of the defendants herein, whom we will hereafter call the mortgagor, executed and delivered to plaintiff her note for $2,000, secured by a mortgage bearing the date of May 29, 1931, which mortgage was duly recorded.The Union Title & Trust Company, a corporation, hereinafter called the company, was at the time engaged in the issuing of title insurance policies.On the 29th day of December, 1931, plaintiff assigned the note and mortgage to the company.This assignment was made only for the purpose of enabling the company to reassign the mortgage to the state of Arizona in pursuance of the provisions of section 1776,Revised Code 1928, which provides that title insurance companies before they may issue guaranties of title must deposit with the state treasurer authorized securities to the amount of at least $50,000.All of these assignments were properly recorded.As a result of these transactions, plaintiff was the equitable owner and holder of the note and mortgage, subject, however, to the rights of the state of Arizona, for the use and benefit of the holders of title insurance policies issued by the company.The whole sum of the note and mortgage became due and payable, and plaintiff made demand for payment, and, it not being made, brought this suit to foreclose.The mortgage provided that, in the case suit was brought, the mortgagee should be entitled to the appointment of a receiver to take possession of the property pending a final disposition of the matter, and in her complaint plaintiff therefore asked that a receiver be appointed.There were a number of parties named as defendants in the action, but we shall refer only to those who have appealed from the judgment; the mortgagor, of course, being one.Frank Martin, hereinafter called the owner, was named as partydefendant; it being alleged that his interest arose by reason of a conveyance to him of the premises after the execution of the mortgage.J. C. Coulson and H. L. Kinman, and their respective wives, and Arizona Sash Door & Glass Company, a corporation, hereinafter called the lienees, were made parties by reason of certain lien claims which were of record as against the property.These defendants were served with summons as follows: The mortgagor on September 16, 1932, and the lienees on September 17, 1932, all such services being made in Maricopa county, Arizona.The original return on the summons omitted to state that the services were made in Maricopa county, but on motion of plaintiffthe court authorized that the return of service be corrected to show service in that county.The owner was not served, but voluntarily entered his appearance by way of a demurrer filed on October 20, 1932, a plea in bar filed November 23, 1932, and an answer filed March 2, 1933.No answer or appearance having been made for the mortgagor or lienees, a default was duly entered on October 8th.In the meantime plaintiff had secured an order to show cause why a receiver should not be appointed, which order was served on the mortgagor and made returnable on September 26th.Plaintiff, however, did not urge the matter, and the same never came before the court for hearing.On October 20th defendants appeared specially for the purpose of demurring to the jurisdiction of the court on the grounds that it had no jurisdiction of the subject of the action, and that there was another action pending between the same parties for the same cause.On October 26th plaintiff moved to strike the demurrer of the mortgagor and of the lienees, which motion was duly granted.The demurrer of the owner was overruled on the same day that the demurrers of the other defendants were stricken.On November 17th plaintiff filed a motion for judgment on the pleadings, but this motion was never urged.On November 23d the mortgagor and the lienees moved to have the default set aside.Accompanying this motion was an affidavit of merits.A plea in bar was also filed by all of the defendants.A motion to set aside these defaults was denied on May 8th, no action being taken at that time on the plea in bar of the owner.On May 23, 1933, plaintiff filed a motion for judgment on the pleadings, which motion was granted on December 5, 1933, and on December 7, 1933, due proof was made of the allegations of the complaint, and an order for judgment was entered.The proposed from of judgment was submitted to the attorney for the defendants, and before the expiration of the 5-day period allowed by the rules, and on December 11th, defendants filed their objections to the form of judgment, which objections being overruled on December 18th, judgment was rendered and the formal written judgment was signed by the trial court and filed with the clerk.

There are four assignments of error which raise four questions of law.We shall consider them in their order.

The first question is, Was the demurrer of the mortgagor and the lienees properly stricken?It appears from the record that summons was served on them in the county of Maricopa, the first on the 16th and the second on the 17th of September 1932.Under section 3753,Revised Code 1928, they had 20 days in which to answer; the last day for either party thus being the 7th day of October.There seems to be some contention by defendants that, because the original return on the summons did not show that it was served in Maricopa county, the 20-day statute did not apply.The time for answer does not depend upon the return but the service, section 3752,Revised Code 1928, and the failure of the writ to show the place where the summons was served is a mere irregularity which may by leave of court be corrected at any time.Section 3768,Rev. Code 1928.No answer having been filed within the time specified by the summons, plaintiff was entitled to have a default entered.Section 3846,Rev. Code 1928.So long as parties are in default, they have no right to participate in any further proceedings in the case, except a motion to set aside the default and petition for leave to appear and answer, or some similar matter not going to plaintiff's right of action.Christerson v. French,180 Cal. 523, 182 P. 27;Laclede Land & Imp. Co. v. Creason,264 Mo. 452, 175 S.W. 55.Such being the case, the demurrer was properly stricken.

The next question is whether the trial court erred in denying the motion to set aside the default.We have discussed the question of what steps it is necessary to take in order to set aside a default in the case of Beltran v. Roll,39 Ariz. 417, 7 P.2d 248, 250.Therein we state as follows:

"It is the law of this state that when a default has been entered upon defendant's failure to answer and judgment rendered thereafter upon the default, in order that the judgment may be set aside and defendant permitted to answer, a motion to that effect must be supported by an affidavit of merits which shows on its face that defendant has a substantial and meritorious defense, and of what it consists.Copper King of Arizona v. Johnson,9 Ariz. 67, 76 P. 594;Arizona Min. etc. Co. v. Benton,12 Ariz 373, 100 P. 952;Security Trust & Savings Bank v. Moseley,27 Ariz. 562, 234 P. 8285.It must also appear that the failure of defendant to answer was the result of excusable conduct on his part.Section 3859,Rev. Code 1928;Arizona Min. etc. Co. v. Benton, supra;Lynch v. Arizona Enterprise Min. Co.,20 Ariz. 250, 179 P. 956;Gutierrez v. Romero,24 Ariz. 382, 210[45...