Preston v. Denkins

• Decision Date: 29 May 1963
• Docket Number: No. 6826,6826
• Citation: 94 Ariz. 214,382 P.2d 686
• Parties: Theodore PRESTON, Appellant, v. Frank DENKINS, Edward A. Smith, and William G. Hall, as Administrator with the Will Annexed of the Estate of Ronaldo F. Denkins, Deceased, Appellees.
• Court: Arizona Supreme Court

Page 686

382 P.2d 686

94 Ariz. 214

Theodore PRESTON, Appellant, v. Frank DENKINS, Edward A. Smith, and William G. Hall, as Administrator with the Will Annexed of the Estate of Ronaldo F. Denkins, Deceased, Appellees.

No. 6826.

Supreme Court of Arizona, In Banc.

May 29, 1963.

Rehearing Denied Sept. 17, 1963.

Fickett & Dunipace, Stauffer & Stauffer, Tucson, for appellant.

Hall, Catlin & Jones, Tucson, for appellees.

LOCKWOOD, Justice.

In 1926 Edward Robinson died leaving certain real property in Pima County, Arizona. His six children, Mabel Preston, William Robinson, John E. Robinson, Cora E. Johnson, Lillie B. Stevens and Pearl Denkins as his heirs became tenants in common of this property.

During the period of 1926 to 1947 the major portion of the taxes on the property were paid by Mabel Preston. Taxes for 1947 were not paid and became delinquent. Theodore Preston, appellant herein, is the son of Mabel Preston. On October 23, 1948, he purchased the land at a tax sale for the amount of $27.53 and received a treasurer's certificate of sale. On April 9, 1952, he instituted legal proceedings to foreclose redemption rights and to quiet title in himself. Named as defendants were William M. Robinson; Edwin Smith, son of Cora E. Johnson, deceased; Ronaldo Denkins, Frank Denkins, Ione Denkins, Katherine Denkins and Abner Denkins, all children of Pearl I. Denkins, deceased; the unknown heirs of John E. Robinson, deceased; and the unknown heirs of all of these defendants. He did not join his mother, Mabel Preston, nor Lillie B. Stevens or her heirs. Service on the defendants was by publication, appellant filing an affidavit that the residences of the known defendants and the known heirs were unknown to him and that he believed none of the defendants were residents of Arizona. He also filed an affidavit that he was unable to determine whether any of the defendants were in military service and an attorney to represent the interest of any defendants who might be in military service was appointed by the court. Default judgment was entered on August 28, 1952, foreclosing the redemption rights of the defendants and quieting title in the appellant. An additional defendant, the Pima County Treasurer, was personally served and filed an answer disclaiming any interest in the property. A treasurer's deed was issued to the appellant under date of September 9, 1952, and thereafter recorded in the office of the Pima County Recorder.

On November 23, 1955, appellee Frank Denkins, representing the interest of himself and the heirs of William Robinson, Cora E. Johnson and Ronaldo Denkins, all deceased, filed a motion to vacate the judgment and for leave to file answer. The motion was supported by affidavit of Frank Denkins that the appellant had falsely stated in his affidavit for publication of service that he did not know the residences and whereabouts of the defendants, when their whereabouts actually were well known to him; and that defendants had no notice or knowledge of the action until long after judgment had been taken against them. Thereafter appellee William G. Hall, as administrator with will annexed of the estate of Ronaldo F. Denkins, deceased, filed a motion to vacate the default judgment and adopted the pleadings of Frank Denkins in support thereof.

The record is a vertiginous maze of technical motions, counter-motions, affidavits and objections, enumeration of which would serve no purpose. Following a hearing on the motion to vacate the default judgment, at which evidence was taken, the trial court held the judgment void for lack of jurisdiction over the named defendants and set it aside.

Theodore Preston has appealed, making twenty-two assignments of error. These will be discussed as related to the legal questions raised.

Appellant states as a proposition of law that the litigants are entitled to a jury trial as to the contested issues of fact on a motion to set aside a judgment, relying on Arizona Constitution, Art. 2, § 23, A.R.S. However, he has failed to support this proposition by argument or further authority. Nor do appellees throw much light on this proposition in the way of analysis or decisive authority. In determining this question we must first resolve the nature of the application of defendants to vacate the judgment and its timeliness.

Appellant contends that the motions to vacate were not timely filed under Rule 60(c), Rules of Civil Procedure, 16 A.R.S. ¹ since more than one year had elapsed since entry of judgment.

In jurisdictions in which there are terms of court, the accepted principle is the court has the inherent power to vacate, or modify its judgment within its discretion so long as the term of the court at which the judgment was rendered has not expired. In Arizona where there is no set term of court, the inherent power of the court to vacate or modify its judgment does not extend beyond the point at which the judgment becomes final, except as authorized by law. When a judgment becomes final, the power of the court to open it is governed by the Rules of Civil Procedure adopted by this court. ² State v. McCarrell, 80 Ariz. 240, 295 P.2d 1086; Dockery v. Central Ariz. Light & Power Co., 45 Ariz. 434, 45 P.2d 656.

This limitation does not, however, apply to the right to challenge a judgment on the ground that it is void for lack of jurisdiction of the parties. The right of the court to hear such a challenge does not depend upon rules of the court or statute. Vazquez v. Dreyfus, 34 Ariz. 184, 269 P. 80; Rico Consol. Min. Co. v. Rico Exploration Co., 23 Ariz. 389, 204 P. 138; 49 C.J.S. Judgments § 288, p. 523.

Statutes of limitations have no application to void judgments. Brandt v. Brandt, 76 Ariz. 154, 261 P.2d 978, and therefore the one year limit imposed by Rule 60(c) does not bar appellees' motion to vacate. Nor does Rule 60(c) control the nature of the proceedings. It is well established that a motion to vacate a default judgment for mistake, inadvertence, surprise or excusable neglect under Rule 60(c) of the Rules of Civil Procedure is addressed to the sound discretion of the trial court. Postal Benefit Insurance Co. v. Johnson, 64 Ariz. 25, 165 P.2d 173. However, in such a case the validity of the judgment is not an issue but rather whether the court will permit the movant relief from a valid judgment. Bray v. Germain Investment Co., 105 Colo. 403, 98 P.2d 993. If the judgment is void for lack of jurisdiction the court has no such discretion but must vacate the judgment. Gordon v. Gordon, 35 Ariz. 357, 278 P. 375:

'But when, as here, the right to serve the summons constructively is based upon the affidavit of the plaintiff that the residence of the defendant was unknown to her, when this statement was knowingly untrue and made for the specific purpose of preventing the defendant from appearing and making a defense, there was in fact no service at all and the court should so treat it. It would seem to be plain that the service of process by publication based upon such an affidavit could be of no more effect, for instance, than service by an officer who makes return that he has personally served a defendant when he has not in fact done so. In neither instance would there be any actual service. That the statute relating to service by publication has been complied with would avail nothing, in view of the fact that the condition giving a plaintiff the right to invoke it did not exist.

* * *

* * *

'The only effect such service can have is to confer a jurisdiction that is merely apparent or colorable, not actual or real. That this is true is clear because the court is necessarily without knowledge of a defect in service that is regular on its face and can take cognizance of it only after it is disclosed by proof of extrinsic facts dehors the record. But when proof of this kind is made, and the defect is shown to be one invalidating the service, every act theretofore or thereafter performed based upon it is void and without effect and should be set aside at the request of the party affected by it.'

Thus the decision is founded on the facts showing no jurisdiction and not the discretion of the court. Appellant contends that he is entitled to a jury's decision on these facts.

The early Arizona practice was that, after the term of court expired, proceedings extrinsic to the action in which the judgment was rendered were required in those cases where it was necessary to show matters dehors the record to establish lack of jurisdiction. National Metal Co. v. Greene Etc. Co., 9 Ariz. 192, 80 P. 397. The reason as stated in the Greene case is that when a party is required to produce evidence dehors the record to show a judgment is void, he should be permitted to do so only where the facts on which he relied may be examined under the forms and sanction of a regular trial, and not upon a motion to vacate.

However, in the 1934 case of Bell v. Bell, 44 Ariz. 520, 39 P.2d 629, the court indicated that a motion to vacate a judgment based on lack of jurisdiction was a proper method of procedure, regardless of the time limitation for such a motion based on other grounds. In 1936, in the case of American Surety Co. v. Mosher, 48 Ariz. 552, 64 P.2d 1025, this court approved the practice of obtaining relief from a void judgment either by motion to vacate the judgment or by an independent suit to have it set aside. ³

The nature of the issues determines the right to a jury. Baumgartner v. Schey, 143 Colo. 373, 353 P.2d 375; 31 Am.Jur. Jury, § 25. In a suit in equity to receive the relief sought by a motion to vacate either party would have a right to demand a jury. Rules 39(a) and 39(l) Rules of Civil Procedure.

The court therefore was in error in its denial of a jury trial on appellant's timely request. However, the right to trial by jury only arises where there are disputed facts or where different inferences may be drawn from the undisputed facts. Rundle v. Winters, 38 Ariz. 239, 298...