National Metal Co. v. Greene Consol. Copper Co.

• Decision Date: 22 March 1907
• Docket Number: Civil 983
• Parties: NATIONAL METAL COMPANY, a Corporation, Plaintiff and Appellant, v. GREENE CONSOLIDATED COPPER COMPANY, a Corporation, et al., Defendants and Appellees
• Court: Arizona Supreme Court

89 P. 535

11 Ariz. 108

NATIONAL METAL COMPANY, a Corporation, Plaintiff and Appellant, v. GREENE CONSOLIDATED COPPER COMPANY, a Corporation, et al., Defendants and Appellees

Civil No. 983

Supreme Court of Arizona

March 22, 1907

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Santa Cruz. Fletcher M Doan, Judge. Reversed, with directions to overrule the demurrer interposed by defendant.

The facts are stated in the opinion.

Hawkins & Ross, for Appellant.

In support of his contention that appellant was not guilty of laches in failing to interpose by motion prior to the rendition of judgment, on the ground that appellant was never served with any legal process so as to give it actual or constructive notice, in addition to the cases cited by the court in its decision as bearing in favor of appellant's contentions on this point, appellant cites: Rathbun v Acker, 18 Barb. 393; Simmons v. Gardiner, 6 R.I. 255; Williams v. Van Valkenburg, 16 How. Pr 152; Van Rensallaer v. Palmatier, 2 How. Pr. 24; Wall v. Wilson, 2 La. 169; Caldwell v. Glenn, 6 Rob. (La.) 9; Hughes v. Martin, 1 Ark. 386; Du Bois v. Clark, 12 Colo.App. 220, 55 P. 750, wherein the court said: "The legislature has prescribed the process necessary where life or liberty is involved; and it has also prescribed the process necessary to the rendition of judgments in civil actions, by means of which parties may be deprived of their property. The process prescribed is actual process, to be actually served in some one of the methods specified."

Appellant's amended complaint herein states a full and complete cause of action, and is in pursuance of the proper remedy. It seeks relief from a judgment for a large sum rendered absolutely without jurisdiction. Appellees knew when they took the judgment that the court was without jurisdiction of the appellant. Appellant was not then, and is not now, indebted to appellees. Appellant's legal remedies have been exhausted. That our proceeding is proper and our complaint ample and sufficient, see Kibbe v. Benson, 17 Wall 630, 21 L.Ed. 741; Hamblin v. Knight, 81 Tex. 351, 26 Am. St. Rep. 818, 16 S.W. 1082; Gulf etc. Ry. Co. v. Rawlins, 80 Tex. 581, 16 S.W. 430; Mullins v. Central Coal Co., 73 Ark. 333, 84 S.W. 477; Earl v. McVeigh, 91 U.S. 503, 23 L.Ed. 398; People v. Temple, 103 Cal. 447, 37 P. 414; Du Bois v. Clark, 12 Colo.App. 220, 55 P. 754; State Ins. Co. v. Waterhouse, 78 Iowa 674, 43 N.W. 611. The complaint was not insufficient in failing to allege fraud on the part of the appellees in procuring the sheriff's return to be made. The common-law rule, covered by federal cases cited by appellees, does not apply in this territory, but has been expressly abrogated by section 1088, Revised Statutes of 1901. See, also, Smoot v. Judd, 184 Mo. 508, 83 S.W. 481.

Eugene S. Ives, for Appellees.

The appellant had notice of the attempted service of the summons in ample time to have availed itself of its legal remedy by motion or plea in abatement, or to interpose a defense, and no excuse for not doing so having been shown, the complaint is insufficient. The rule is, as the appellees contend, that a party cannot invoke the aid of a court of equity to vacate or restrain the enforcement of a judgment at law unless he shows that he had no opportunity to avail himself of such legal remedies as the law provides; and when a party against whom a judgment is rendered without proper service of process, and who has knowledge of the pendency of the action and the attempted service in ample time to have availed himself of the legal remedy, deliberately permits the time within which the legal remedy is available to pass, he has barred himself by his own neglect from obtaining relief in a court of equity. Massachusetts Benefit Life Assn. v. Lohmiller, 74 F. 24 (at p. 27), 20 C.C.A. 274; City of Fort Pierre v. Hall, 19 S.D. 663, 117 Am. St. Rep. 972, 104 N.W. 470; Hockaday v. Jones, 8 Okl. 156, 56 P. 1054, where will be found a full discussion of the subject, and a reference to authorities in support of appellee's position; Ede v. Hazen, 61 Cal. 360; Dorwart v. Troyer, 2 Neb. (Unof.) 22, 96 N.W. 116.

A false return of service is not sufficient to warrant equitable interposition unless it be alleged that the false return was procured by fraud of the opposite party. Massachusetts Life Assn. v. Lohmiller, 74 F. 23, 20 C.C.A. 274; Knox v. Harshman, 133 U.S. 152, 10 S.Ct. 257, 33 L.Ed. 586; Cully v. Shirk, 131 Ind. 76, 31 Am. St. Rep. 414, 30 N.E. 882; King v. Davis, 137 F. 222; Graham v. Loh, 32 Ind.App. 183, 69 N.E. 474.

OPINION

NAVE, J.

-- The National Metal Company, appellant, brought suit against the Greene Consolidated Copper Company and another in the district court of Santa Cruz county. A demurrer to the complaint was sustained, and, plaintiff declining to amend, judgment thereon was rendered for the defendants. From this judgment plaintiff has appealed.

The complaint, in the briefest substance, alleges that plaintiff is a foreign corporation not at any time engaged in the transaction of business in this territory except in isolated transactions in the nature of interstate commerce; that in March, 1903, the defendants sued the plaintiff in the district court of Santa Cruz county; that in that suit the sheriff made return of summons certifying that he had served the same upon one Pellegrin, the agent of the plaintiff (defendant in that suit); that plaintiff did not appear in that action or answer therein; that on June 23, 1903, being the last day of the term of that court, the court rendered personal judgment by default against the plaintiff; that the said Pellegrin was not at the time of such alleged service, and never had been, the agent of the plaintiff in any manner or for any purpose whatsoever; that on April 4, 1903, an officer of the plaintiff received a letter, at the New York office of plaintiff, from A.L. Pellegrin & Co., stating that service of summons had been made upon them in the action referred to, and that they had notified both of the plaintiffs in that action and their attorneys that they were not, and never had been, the agents of plaintiff; that plaintiff did not receive either from Pellegrin & Co., or from any other source a copy of the summons; that at the time of said service the said Pellegrin gave notice to the sheriff serving him, and to the plaintiffs in that action that he was not, and never had been, the agent of the plaintiff for any purpose whatsoever; that after receiving notice of the rendition of the said judgment, plaintiff in November, 1903, filed in said action its motion to quash said pretended service of process and to vacate, annul and set aside said default judgment, which motion was denied; that from the denial of such motion the plaintiff sued out a writ of error to the supreme court of Arizona where the ruling of the lower court was affirmed and thereafter plaintiff's motion for rehearing was, on May 26, 1905, denied (see 9 Ariz. 192, 80 P. 379); that plaintiff has a meritorious defense to the said action (stating in sufficient detail the defense); that the defendants threaten to, and unless restrained by the court will, annoy, harass and irreparably injure plaintiff by suits and executions on the aforesaid judgment; that plaintiff has exhausted its remedy by motion to set aside said judgment, and by reason of the facts, aforesaid, is without a speedy or adequate remedy at law; that unless relieved by this court from said judgment plaintiff will be irreparably damaged and injured. Wherefore, plaintiff prays that the service and judgment in the said suit be held void, and that defendants be perpetually enjoined and restrained from collecting said judgment, or any part thereof, and from issuing execution or instituting actions thereon, or in any manner exercising or relying upon said judgment. This suit was instituted in the district court on June 3, 1905. On the several grounds of demurrer filed in the lower court, but two require consideration. One is that the complaint does not state facts sufficient to constitute a cause of action; and the other, that the cause of action is barred by limitation. The facts set up in the complaint show sufficient diligence by the plaintiff to relieve it from the imputation of laches, which disposes of the last mentioned of the grounds of demurrer.

Appellees urge that the complaint is defective in four respects. Only two of these require consideration. They are: "(1) That the appellant having had actual knowledge of the pendency of the action, and the attempted service of process, in ample time to avail itself of its legal remedy, or to interpose a defense, it has no standing in an equitable action to vacate the service of process and judgment. (2) That the complaint is wholly insufficient in that it fails to allege that the false return of service was procured by the fraud of plaintiffs."

1. It seems manifest from the statements and argument of counsel that the trial court sustained the general demurrer to this complaint upon the authority of the decision of the circuit court of appeals for the seventh circuit of Massachusetts. Benefit Life Assn. v. Lohmiller, 74 F. 23, 20 C.C.A. 274. The most pertinent expression in this case is: "If it be conceded that the complainant was not properly served, and that the judgment was voidable, or even void, that condition is not of itself sufficient to warrant interference; but an equity must be presented aside from that bare circumstance, showing that the injured party was without knowledge, was taken by surprise, and had no opportunity, in fact, to obtain a hearing. So far as it appears from the allegations of this bill, the complainant may have possessed full and timely...