Monetaria v. Sonora Bank & Trust Co.

• Decision Date: 19 June 1925
• Docket Number: Civil 2329
• Citation: 28 Ariz. 369,236 P. 1114
• Parties: COMISION MONETARIA, Appellant, v. SONORA BANK & TRUST COMPANY, Garnishee, Appellee
• Court: Arizona Supreme Court

236 P. 1114

28 Ariz. 369

COMISION MONETARIA, Appellant, v. SONORA BANK & TRUST COMPANY, Garnishee, Appellee

Civil No. 2329

Supreme Court of Arizona

June 19, 1925

APPEAL from an order of the Superior Court of the County of Santa Cruz.M. Marsteller, Judge.Affirmed.

Messrs Noon & Noon, for Appellant.

Messrs Duffy & Robins, for Appellee.

OPINION

ROSS, J.

This is an appeal from an order vacating and setting aside a default judgment against the garnishee and permitting it to file answer.

The appellant, Comision Monetaria, obtained a judgment on April 14, 1924, against the defendants Cia. Commercial de Sonora y Sinaloa, S.A., A. Cubilas, Jr., and G. F. Bringas, for $11,347.On April 15th it caused to be issued upon said judgment and served on garnishee, Sonora Bank & Trust Company, a writ of garnishment.The garnishee did not file an answer to the writ within the ten days allowed by law, and on April 26th, on the application of appellant, the default of the garnishee was duly entered and judgment rendered against it for the said sum of $11,347.On April 28th the garnishee filed its motion to set aside default judgment.After a hearing on May 2d, this motion was granted, and permission extended to garnishee to file answer.

On this appeal it is claimed by appellant that the court abused its discretion in making such order; it not being made to appear in application therefor that any of the grounds enumerated by the statute(paragraph 600, C.C. 1913), authorizing the court to set aside a judgment, such as mistake, inadvertence surprise, or excusable neglect, existed, and no good cause therefor being shown.This presents the sole question for decision.

The motion to open default, vacate judgment, and for permission to answer, was supported by the affidavit of James V. Robins a member of the firm of Duffy & Robins, attorneys for the garnishee, in which affidavit the reason given for not filing answer before default was that the attorney for appellant, Fred Noon, had promised him an extension of time, or had said to him, "Take your time; I will not take default against you," or words to that effect, in response to a suggestion by Robins that he had been very busy.The motion was also supported by the verified answer of garnishee to the effect that it was not indebted to the judgment debtors, or any of them, in any sum whatever, and had no effects belonging to them, or any of them, in its possession, and did not know of any person or persons indebted to said judgment debtors or who had any effects belonging to them, or any of them, in their possession.The verification of the answer was by the secretary of the garnishee.

At the trial of the motion, witnesses for and against were sworn and testified.The attorney for appellant was quite as positive that he did not agree to any extension of time for the filing of answer by garnishee as the attorney for garnishee was that such extension was given.But it appeared attorneys for garnishee went to the clerk's office with an answer for filing on April...