Prell v. Amado

• Decision Date: 05 October 1965
• Docket Number: CA-CIV,No. 2,2
• Citation: 2 Ariz.App. 35,406 P.2d 237
• Parties: Isadore PRELL and Stanley Prell, Partners under the firm name and style of Prell Enterprises, Stanley Prell dba KSOM Radio Station, Appellants, v. Pablo AMADO dba Amado's Furniture & Appliances, Appellee. 105.
• Court: Arizona Court of Appeals

Page 237

406 P.2d 237

2 Ariz.App. 35

Isadore PRELL and Stanley Prell, Partners under the firm name and style of Prell Enterprises, Stanley Prell dba KSOM Radio Station, Appellants, v.Pablo AMADO dba Amado's Furniture & Appliances, Appellee.

No. 2 CA-CIV 105.

Court of Appeals of Arizona.

Oct. 5, 1965.

Alfred J. Rogers, Eugene R. Karp, Tucson, for appellants.

Dunseath, Stubbs & Burch, by G. Eugene Isaak, Tucson, for appellee.

KRUCKER, Chief Judge.

Plaintiff, Pablo Amado, doing business as Amado's Furniture & Appliances, brought suit against the defendants, Isadore Prell and Stanley Prell, partners under the firm name and style of Prell Enterprises; and Stanley Prell doing business as KSOM Radio Station, for goods, wares, merchandise and services rendered, of the value of $869.74.Action was filed June 12, 1964, and service of process was obtained on the same day.The defendants did not answer and their default was entered on the 16th day of July, 1964.Written judgment was entered on the 20th day of July, 1964.A motion to set aside the default judgment was filed on the 3d day of September, 1964.

On September 18, 1964, the motion to set aside the default was duly heard and denied by the trial court and defendants take this appeal.

Briefly, the facts disclose that before the time to answer had expired the defendants personally contacted plaintiff's attorney and attempted to compromise or settle the action.There was a discussion as to the payment of $75.00 for costs and partial attorney's fees and the execution of a conditional sales contract and the liquidation of a portion of the indebtedness in radio advertising for plaintiff.

On July 2, 1964, plaintiffs' counsel wrote Mr. Stanley Prell, stating the conditions.This letter stated, among other things, that the $75.00 was to be received on or before July 15, 1964.Defendants contend that the arrangement discussed provided for the $75.00 to be paid 'around'July 15.Defendants denied receiving the letter of July 2.Regardless of the interpretation as to the time of payment of the $75.00, it was never paid or tendered.

A full hearing was held on the motion to set aside the default judgment.Four witnesses were called and testified concerning all of the facts.

In order to secure the setting aside of a default judgment, the party in default must show, first, excusable neglect; and, second, a meritorious defense.SeeSchering Corporation v. Cotlow, 94 Ariz. 365, 385 P.2d 234(1963);Hendrie Buick Company v. Mack, 88 Ariz. 248, 355 P.2d 892(1960);Wellton-Mohawk Irrigation and Drainage District v. McDonald(September 3, 1965)1 Ariz.App. 508, 405 P.2d 299;Safeway Stores, Inc. v. Ramirez, 1 Ariz.App. 117, 400 P.2d 125(1965);andMarquez v. Rapid Harvest Co., 1 Ariz.App. 138, 400 P.2d 345(1965).

Carelessness is not synonymous with 'excusable neglect' as a basis for setting aside a default judgment.Thomas v. Goettl Bros. Metal Products, Inc., 76 Ariz. 54, 258 P.2d 816(1953).

The setting aside of a default judgment lies within the sound...