Michender v. Standard Accident Ins. Co., Civil 3497

• Decision Date: 01 July 1935
• Docket Number: Civil 3497
• Parties: C. C. MICHENDER, as Trustee for the Pinto-Navajo Syndicate, Appellant, v. STANDARD ACCIDENT INSURANCE COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

47 P.2d 438

46 Ariz. 66

C. C. MICHENDER, as Trustee for the Pinto-Navajo Syndicate, Appellant, v. STANDARD ACCIDENT INSURANCE COMPANY, a Corporation, Appellee

Civil No. 3497

Supreme Court of Arizona

July 1, 1935

APPEAL from a judgment of the Superior Court of the County of Navajo. P. A. Sawyer, Judge. Judgment affirmed.

Mr. W E. Ferguson, for Appellant.

Messrs Sloan, McKesson & Scott and Mr. Edwin D. Green, for Appellee.

OPINION

LOCKWOOD, C.J.

C. C Michener, as trustee for the Pinto-Navajo Syndicate hereinafter called plaintiff, brought suit against Julius Wetzler, Evelyn S. Wetzler, his wife, and Standard Accident Insurance Company, a corporation, the latter hereinafter called defendant.

The complaint was filed in the superior court of Navajo county on the 5th day of June, 1931, and on the same day summons was issued in the usual form. In the body thereof the defendants were required to "answer the complaint therein filed with the Clerk of this said court, at Holbrook, in said county, within twenty days after the service upon you of this Summons, if served in this said County, or in all other cases within thirty days thereafter."

This summons, with complaint attached, was served on the defendant on June 8, 1931, by delivering it to Amos A. Betts, as member and chairman of the Arizona Corporation Commission, in Maricopa county, Arizona, and was immediately transmitted by the Corporation Commission by mail to the home office of defendant at Detroit, Michigan, it being a nonresident insurance corporation. Defendant in turn immediately mailed the summons and complaint to its attorneys in Phoenix, Arizona, it being received by them on June 22d. Believing that since the action was filed in Navajo county and the summons was served in Maricopa county, they had thirty days in which to answer, they prepared various appropriate pleadings, and on July 6th filed them in the office of the clerk of the superior court of Navajo county.

The attorney for plaintiff, however, believing that under section 1795, Revised Code of 1928, defendant had only twenty days in which to answer, had on June 30th prior to the filing of the pleadings of defendant, as aforesaid, without any notice to the latter, or its attorneys, caused a default to be entered against defendant for failure to answer.

Upon discovering the situation, defendant's counsel took the matter up with counsel for plaintiff and the clerk of the court to ascertain why a default had been, as they believed, prematurely entered, and attempted to get counsel for plaintiff to agree to a vacation of the default, but being unable to do so, on September 12th filed a motion to vacate the default, supported by an affidavit setting forth the foregoing facts, and alleging that it had a meritorious defense to the action, setting such defense forth in detail. The matter was argued to the court, and on November 7th an order was made setting aside the default and allowing defendant to answer. Thereafter the case proceeded to trial on the merits, and judgment was rendered in favor of defendant. The Wetzlers having failed to answer at any time, judgment was taken against them by plaintiff, and the present appeal affects only the judgment in favor of defendant Standard Accident Insurance Company.

After the record upon appeal had been filed in this court, on motion of defendant the reporter's transcript was stricken. Plaintiff moved to reinstate it and this last motion was briefed and also argued orally most strenuously by counsel for both plaintiff and defendant, and was finally by the court denied.

There are four assignments of error, three of which go to the admission of evidence and its sufficiency to support certain findings of the court. Since the evidence in the case is not before us, we, of course, cannot consider these assignments. Kinney v. Neis, 14 Ariz. 318, 127 P. 719; Holmes et al. v. Bennett, 14 Ariz. 298, 127 P. 753; Floyd v. Hornbeck, 39 Ariz. 178, 4 P.2d 908; Shaffer v. Territory, 14 Ariz. 329, 127 P. 746; Hamilton v. State, 17 Ariz. 483, 154 P. 1039; Ensign v. Koyk, 31 Ariz. 1, 250 P. 246; Wooster v. Scorse, 16 Ariz. 11, 140 P. 819; Miller v. Maddux, 37 Ariz. 485, 295 P. 326.

There remains, then, the first assignment, which is that the court erred in granting the motion to set aside the default. It is...