Perrin v. Perrin Properties, Inc.

• Decision Date: 09 January 1939
• Docket Number: Civil 4028
• Citation: Perrin v. Perrin Properties, Inc., 86 P.2d 23, 53 Ariz. 121 (Ariz. 1939)
• Parties: E. B. PERRIN, Jr., and Mrs. E. B. PERRIN, Jr., Appellants, v. PERRIN PROPERTIES, INCORPORATED, Appellee
• Court: Arizona Supreme Court

86 P.2d 23

53 Ariz. 121

E. B. PERRIN, Jr., and Mrs. E. B. PERRIN, Jr., Appellants, v. PERRIN PROPERTIES, INCORPORATED, Appellee

Civil No. 4028

Supreme Court of Arizona

January 9, 1939

APPEAL from an order of the Superior Court of the County of Yavapai.Richard Lamson, Judge.Order affirmed.

Mr. E R. Byers and Mr. Urban R. Miller, for Appellants.

Messrs Favour & Baker and Mr. A. M. Crawford, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal from an order of the superior court of Yavapai county, made December 31, 1937, denying the petition of E. B Perrin, Jr., and Mrs. E. B. Perrin, Jr., his wife hereinafter called defendants, to set aside a certain judgment and grant a new trial to defendants.The situation presented by the record may be stated as follow:

Perrin Properties, Inc., a corporation, hereinafter called plaintiff, brought suit in the superior court of Yavapai county on July 3, 1936, against Sherman Hazeltine as administrator of the estate of E. B. Perrin, Sr., deceased, E. B. Perrin, Jr., and Mrs. E. B. Perrin, Jr., his wife, the defendants herein and many other parties, for the purpose of quieting title to many thousand acres of land in the counties of Santa Cruz, Cochise, Yavapai, Coconino and Navajo.Service was made personally on some of the defendants and by publication, in the manner provided by law, on others, and the case came on regularly for hearing on September 9, 1936.None of the defendants had answered except Yavapai county, and a default was asked for against all of the defendants upon whom personal service had been made.Evidence was then offered by plaintiff showing that every effort had been made to locate defendants herein and to serve them personally for the reason that plaintiff desired to avoid any question as to whether the service on them was legal or not, but that they could not be found.This evidence covers some forty-three pages of the reporter's transcript, and we will refer to it in detail in this opinion as it becomes necessary.A default was thereupon entered as against them, and the court proceeded to hear evidence on the merits of the case.Thereafter, and on the 24th day of September a formal judgment was entered quieting the title as prayed for in the complaint.The court found therein as follows:

"that the residence of E. B. Perrin, Jr., and Mrs. E. B. Perrin, Jr., his wife, at the time of instituting the above entitled cause of action, immediately prior thereto, and at all times since, is and was unknown to the plaintiff, that plaintiff prior to and during said times made due and diligent effort to ascertain the residence of E. B. Perrin, Jr., and of Mrs. E. B. Perrin, Jr., that said E. B. Perrin, Jr., and Mrs. E. B. Perrin, Jr., are transient persons and were transient persons at the time this cause of action was instituted and have remained so ever since; that said E. B. Perrin, Jr., and Mrs. E. B. Perrin, Jr., concealed themselves to avoid the service of summons in this action, and did so conceal themselves at the time this action was instituted, and have continued to do so at all times since;..."

and that all of the allegations of the complaint were true, and then rendered a decree quieting the title to the property set forth in the complaint in plaintiff.

On the 22d day of September, 1937, lacking but two days of being one year after the rendition of judgment, defendants herein moved to set aside the judgment under section 3851,Revised Code 1928, and to grant them a new trial.The section referred to reads, so far as material, as follows:

"New trial after service by publication; superseding judgment.When judgment has been rendered on service by publication, and the defendant has not appeared, a new trial may be granted, upon the application of the defendant, for good cause shown by affidavit, made within one year after rendition of such judgment...."

The affidavit in support of the motion set up, in substance, that the residence of defendants was at all times known to the plaintiff, and that, although it was so known, no copy of the summons and complaint was ever served on them, or mailed to them at their residence, or at any other place.The affidavit further set up that the defendants had a good and meritorious defense to the action.An answer was tendered with the motion and affidavit, claiming that the plaintiff did not own the lands in question in fee simple, but that defendants had an equitable ownership of approximately one-fourth therein, and denying generally all the allegations of the complaint.

Counsel for plaintiff filed an affidavit opposing the motion for new trial, and the matter having been continued from time to time, on December 31, 1937, the motion for new trial was denied.Thereupon this appeal was taken.

It will be noticed that the appeal is from the order denying the motion for a new trial, and not from the original judgment quieting title the plaintiff.The sole question for our consideration, therefore, is whether or not the court erred in denying the motion.

Section 3851, supra, upon which the motion was based, provides that when a defendant has been served by publication, a new trial may be granted for good cause shown.The granting is not mandatory upon the court, but is dependent upon its sound...