McClintock v. Serv-Us Bakers

• Decision Date: 10 February 1967
• Docket Number: SERV-US,CA-CIV,No. 1,1
• Citation: 5 Ariz.App. 107,423 P.2d 722
• Parties: Fred L. McCLINTOCK and Harold Riddel, Appellants, v.BAKERS, a division of C. J. Patterson Co., a corporation, Appellee. 370.
• Court: Arizona Court of Appeals

Page 722

423 P.2d 722

5 Ariz.App. 107

Fred L. McCLINTOCK and Harold Riddel, Appellants, v. SERV-US BAKERS, a division of C. J. Patterson Co., a corporation, Appellee.

No. 1 CA-CIV 370.

Court of Appeals of Arizona.

Feb. 10, 1967.

Rehearing Denied March 8, 1967.

Review Granted March 28, 1967.

Riddel & Riddel, by Marilyn A. Riddel, Phoenix, for appellants.

Gust, Rosenfeld & Divelbess, by Richard H. Whitney, Phoenix, for appellee.

STEVENS, Judge.

This appeal relates to the status of an unverified, incomplete answer to a writ of garnishment and to the procedural problem concerning the right to review orders of a Justice of the Peace entered more than ten days after the entry of the judgment.

The appellants herein were the defendants in the Superior Court. They moved for a summary judgment based upon the verified complaint, the verified answer and their factual recitation as to prior events. Serv-Us moved for summary judgment conceding that there were no disputed facts. While there are some areas wherein it would have been helpful to this Court had greater detail been set forth in the record, we deem the record adequate.

McClintock filed a suit in the Justice Court against Colosi seeking a recovery of $499.99 plus interest and costs. This suit is within the Justice Court's jurisdiction. A.R.S. Section 22--201, subsec. B, amended. On 31 July 1964, judgment was entered as prayed for in favor of McClintock and against Colosi. This judgment has not been attacked. Thereafter in the Justice Court, McClintock caused two writs of garnishment to be issued and served on Serv-Us, one on 1 August 1964 and one on 21 August 1964.

The statutes in relation to writs of garnishment provide:

' § 12--1574. Issuance, service and return of writ; corporation as garnishee

'A. The clerk or justice of the peace shall file the affidavit provided for in § 12--1573, and bond, if any, and immediately issue A writ of garnishment directed to the sheriff or any constable of the county where the garnishee is alleged to be, commanding him forthwith to Summon the garnishee to appear before the court out of which the writ issued within the time specified in the writ, To answer upon oath what, if anything, he is Indebted to defendant and was when the writ was served, and what Effects if any, Of defendant, he has In his possession and had when the writ was served, And what other person if any, within his knowledge Is indebted to defendant or has effects belonging to defendant in his possession.

'B. If the garnishee is a corporation, the writ shall Further command the garnishee to Answer upon oath what Number of shares if any, defendant owns in the corporation or owned when the writ was served, And what interest if any, he has in the corporation or had when the writ was served.' (Emphasis supplied)

' § 12--1579. Answer of garnishee; form

'The answer of the garnishee shall be under oath, in writing and signed by him, and shall make true answers to the writ. If a partnership is the defendant, or if there are more defendants than one, the garnishee shall answer as to the partnership and as to each member thereof, or as to each defendant named in the writ.' (Emphasis supplied)

' § 12--1583. Judgment by default against garnishee

'If a garnishee fails to answer within the time specified in the writ, the court may, after judgment has been rendered against defendant, Render judgment by default against the garnishee for the full amount of the judgment against defendant.' (Emphasis supplied)

' § 12--1589. Controverting answer of garnishee; method and time

'If the plaintiff or the defendant Is not satisfied with the answer of the garnishee, he may controvert the answer within twenty days after filing of the answer if the cause is pending in the superior court, and within five days after the filing if in a justice's court, by an affidavit in writing, signed by him or some one for him, stating that he has good reason to believe and does believe that the answer of the garnishee is incorrect, and in what particular he believes it is incorrect.' (Emphasis supplied)

The writs conformed to the statutory requirements. In relation to the writ served 1 August 1964, we quote the McClintock-Riddel motion for summary judgment:

'August 4, 1964 Court received and filed letter dated August 3, 1964, signed by H. H. Smith, Office Manager, stating:

'We wish to advise you that Russell J. Colosi has no funds due him at this time.'

'August 13, 1964 Default judgment in favor of McClintock and against Serv-Us Bakers as garnishee-defendant entered and signed by the Court.'

In relation to the writ served 21 August 1964, we quote from the same motion for summary judgment:

'August 25, 1964 Court received and filed letter dated August 24, 1964, signed by H. H. Smith, Office Manager, with same contents as letter of August 3, supra.

'September 2, 1964 Default judgment in favor of McClintock & against Serv-Us Bakers, garnishee-defendant entered and signed by Court.'

Riddel acquired an interest in these judgments as an assignee.

The statutes relative to the right to appeal from the Justice Court to the Superior Court provide:

' § 22--261. Judgments which may be appealed

'A. Any party to a final judgment of a justice of the peace may appeal therefrom to the superior court where the judgment or the amount in controversy exceed twenty dollars, exclusive of costs.' (Emphasis supplied)

An appeal must be taken within ten days from the date of judgment by the filing of a notice of appeal and the posting of a bond. A.R.S. Section 22--262 amended. The McClintock-Riddel motion for summary judgment further recites:

'October 16, 1964 Serv-Us Bakers through its attorney filed Motion to Set Aside Default and Default Judgment.

'January 7, 1965 Oral argument on said Motion whereafter Court denied said Motion.

'January 11, 1965 Serv-Us Bakers filed its Notice of Appeal and posted statutory appeal bond in the sum of $1,095.38 with McClintock as payee and The Pennsylvania Insurance Company as Surety.

'April 14, 1965 Appeal dismissed by Superior Court after memorandums of law and oral argument thereon.

'April 26, 1965 Superior Court entered an Amended Judgment dismissing the appeal and remanding the matter to Justice Court.

'June 8, 1965 Judgment signed and filed in favor of McClintock and against the Pennsylvania Insurance Company pursuant to terms of bond issued by it.'

This Court has not received a copy of the record presented to the Superior Court or a transcript of the action taken by the Superior Court on either 14 April or 26 April. On oral argument both parties agreed that on the last mentioned dates, the Superior Court ruled that it had no jurisdiction to entertain an appeal from the 7 January 1965 order of the Justice of the Peace. This appears to have been a correct ruling. The right to appeal from the Justice Court to the Superior Court is statutory. The statutes only authorize an appeal from a 'final judgment' within ten days from the entry thereof. There is no other right of appeal in civil actions.

The right of appeal from the Superior Court to the Court of Appeals or the Supreme Court is much broader. A.R.S. Section 12--2101. There are many subsections contained in this Code section. In relation to action taken by the Superior Court there can be an appeal not only from 'a final judgment' under subsection B of this section, but there may also be an appeal from 'any special order made after final judgment' as specified in subsection C of this section. Had the 7 January 1965 order of the Justice of the Peace been entered in the Superior Court there would have been a right to appeal in relation thereto. Does this mean that once a judgment has been entered in a Justice Court and ten days has expired, the Justice Court may thereafter commit error without the right of judicial review? We hold that the answer is in the negative.

We first determine whether the Justice of the Peace committed such error in the 13 August and 2 September judgments against Serv-Us as being in excess of the jurisdiction of the Justice Co...