Occidental Life Ins. Co. of Cal. v. Marsh, 1
| Decision Date | 03 February 1967 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 5 Ariz.App. 74,423 P.2d 150 |
| Parties | OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, a corporation, Appellant, v. Clyde William MARSH, Sr., and Anna Christine Marsh, husband and wife, Appellees. 375. |
| Court | Arizona Court of Appeals |
Gust, Rosenfeld & Divelbess, by Edward L. Morgan and Richard Segal, Phoenix, for appellant.
Riddel & Riddel, by Harold Riddel, Phoenix, for appellees.
This appeal is from an order of the Superior Court of Maricopa County vacating a May 16, 1963 default judgment against defendants-appellees obtained by plaintiff-appellant in a mortgage foreclosure suit.
Defendants, Mr. and Mrs. Clyde William Marsh, Sr., had purchased the property in question, a home, from their son and daughter-in-law, Mr. and Mrs. Clyde William Marsh, Jr. Mr. and Mrs. Marsh, Jr., were permitted by the parents to continue to live in the home and to make the mortgage payments.
A private process server served the summons and complaint for foreclosure on the persons who were living in the home. The affidavit of service stated that personal service was obtained on Mr. and Mrs. Marsh, Sr., on March 6, 1963, and that service was not made on Mr. and Mrs. Marsh, Jr.
At the hearing on the motion to vacate default judgment, the affidavit of service was in the file. Mr. and Mrs. March, Sr., testified that on March 6, 1963, they were living in Oak Lawn, Illinois, and that they had not been in Arizona between April 1962 and March 1964. The Court found that Mr. and Mrs. Marsh, Sr., had not been served. The motion to vacate was granted.
Plaintiff claims that defendants had actual knowledge of the foreclosure action in July of 1963, a short time after the entry of default judgment in May of 1963, and therefore defendants were barred by laches in not bringing a motion to vacate until September 30, 1965. The case of Preston v. Denkins, 94 Ariz. 214, 382 P.2d 686 (1963), settles this question.
'* * * If the judgment is void for lack of jurisdiction the court has no discretion but must vacate the judgment. * * *
'* * * The general rule is that mere lapse of time is no bar to an attack on a void default judgment. * * *'
The record shows that defendants had actual notice of the lawsuit in July 1963. The record does not show that they had knowledge of the default judgment or when they acquired knowledge of judgment. There appears to be no reason for deviation from the general rule.
The second question is whether affidavit of service of process can be impeached only by evidence which is corroborated. The plaintiff cites a number of cases from other jurisdictions where corroboration is required. However, the rule in Arizona is that the return of service of process is impeached only by clear and convincing evidence. Whether that...
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...329 So.2d 437, 441-42 (La.1976); In re Conduct of Chambers, 292 Or. 670, 673, 642 P.2d 286, 288 (1982).20 Occidental Life Ins. Co. v. Marsh, 5 Ariz.App. 74, 75-76, 423 P.2d 150 (1967).21 Shepherd v. Shepherd, 81 Mich.App. 465, 265 N.W.2d 374, 376 (1978) ("clear and convincing proof"). See a......
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...only by clear and convincing evidence. Eldridge v. Jagger, 83 Ariz. 150, 317 P.2d 942 (1957); Occidental Life Insurance Company of Cal. v. Marsh, 5 Ariz.App. 74, 423 P.2d 150 (1967); Tonelson v. Haines, 2 Ariz.App. 127, 406 P.2d 845 (1965). As these authorities indicate, however, the burden......