Moody v. Lloyd's of London

• Decision Date: 16 October 1944
• Docket Number: Civil 4619
• Citation: Moody v. Lloyd's of London, 61 Ariz. 534, 152 P.2d 951 (Ariz. 1944)
• Parties: L. L. MOODY, Appellant, v. LLOYD'S OF LONDON, Appellee
• Court: Arizona Supreme Court

152 P.2d 951

61 Ariz. 534

L. L. MOODY, Appellant, v. LLOYD'S OF LONDON, Appellee

Civil No. 4619

Supreme Court of Arizona

October 16, 1944

APPEAL from a judgment of the Superior Court of the County of Maricopa.Howard C. Speakman, Judge.Appeal and Cross-Complaint dismissed.

Mr. W H. Chester, for Appellant.

Messrs Beer & Christy, for Appellee.

OPINION

STANFORD, J.

In November, 1940, appellant was employed by the Red Rover Copper Company, and on entering the employment entered into a written renouncement rejecting the terms of the Workmen's Compensation Law, at which time the Red Rover Copper Company was carrying two insurance policies with the appellee, one policy being for the payment of benefits in the event of death or injury to the Red Rover Copper Company's employees who had rejected the provisions of the Workmen's Compensation Law, and the other policy protecting the employer in the event an employee who had rejected said Act chose not to take the benefits provided in the first policy but elected to sue the employer at common law or under the Employer's Liability Act.

Appellant was injured while so employed in an accident arising out of and in the course of his employment, and thereafter he made claim to the appellee Lloyd's of London under the provisions of the first policy and was paid by the appellee $766.12, and paid on account of medical treatment the sum of $205.

Appellant thereafter applied to the Arizona Industrial Commission for an award under the provisions of the Arizona Workmen's Compensation Law and set forth that his rejection of that act was acquired by fraud and duress, and upon hearing thereon the Industrial Commission held that the rejection of the Workmen's Compensation Law was null and void and made an award to the appellant in the sum of $720.75, payable forthwith, together with medical expenses.Also the award further ordered:

"It is further ordered that liability on the part of the defendant for temporary total disability compensation and permanent partial disability compensation, and additional medical, surgical and hospital services does not cease at this time and that said liability for the said compensation and medical benefits shall run concurrent with the disability of applicant and final liability of the said employer shall be determined by this Commission at such time as the condition of the said applicant has become stationary by reason of his recovery from the effect of the said injury."It is further ordered that this award be paid within ten days from the date of service hereof.

"It is further ordered that all payments heretofore made by the defendant or which defendant has caused to be made shall be allowed as a credit upon this award upon satisfactory proof of the payment thereof."

From this award the Red Rover Copper Company appealed to the Supreme Court, and this court in November, 1941, rendered its opinion in favor of the Industrial Commission of Arizona and L. L. Moody.

Appellant on November 12, 1941, filed in the Superior Court of Maricopa County the aforesaid judgment, and on July 13, 1942, filed in said court an affidavit on garnishment stating that he had reason to believe that appellee was indebted to defendantRed Rover Copper Company and a writ of garnishment was issued against appellee.On July 23, 1942, appellee filed its answer as garnishee, denying that it was indebted to the Red Rover Copper Company, or that it had effects in its possession belonging to said company, or that said Red Rover Copper Company owned any interest in the appellee corporation.Appellee at said time filed its cross-complaint against appellant alleging that appellant having been injured as aforesaid, and having rejected the Arizona Workmen's Compensation Law, appellant had made application to appellee at that time for payment under the insurance policy issued and under that policy this appellee paid to the appellant the sum of $766.12, and paid on account of medical treatment the further sum of $205, and in said cross-complaint the appellee demanded repayment of the sum so paid to the appellant, and alleged that appellant refused to pay same and the appellee asked for judgment against the appellant in said amount.

A period of approximately four months elapsed after filing the last pleading above mentioned, and appellant having failed to controvert the appellee's answer on garnishment or its cross-complaint, the appellee took a default against the appellant in said Superior Court, which said default was entered on November 23, 1942.On November 23, 1942, appellee filed its motion for judgment on said default and according to the records, due notice was given to the appellant of said motion.On November 30, 1942, appellant filed an affidavit controverting appellee's answer in garnishment and filed a tender of issue.

We find from the minute entries dated December 7, 1942, sent by the clerk of the Superior Court, the following:

"Thereupon this cause comes on duly for hearing before the Court on Garnishee's Motion for Judgment, and the following evidence is introduced on behalf of the Plaintiff":

Following that the minute entry shows that one witness testified and two exhibits were introduced in evidence.The minute entry further shows:

"... At the conclusion of which testimony,

"It is ordered granting garnishee's motion for judgment, in favor of answering garnishee (Underwriters at Lloyd's of London) and against Plaintiff in the sum of $971.12, together with attorney's fees in the sum of $100.00 as prayed for."

We understand from the minute entry that a reporter took the evidence herein, but no transcript was sent to this court, and we find divergent representations set forth by appellant and appellee.

The matter for us to determine is whether or not an appeal may be taken from a default judgment without first having presented a motion to the lower court to set aside the default and such judgment.

Our statute on the subject of setting aside a default is set forth in Sec. 21-1207,Arizona Code 1939, as follows:

"For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60 (b)(§ 21-1502)."

And said LastSec. 21-1502 reads as follows:

"Mistake -- Inadvertence...