Riggs v. Huachuca Inv. Co.

• Decision Date: 25 January 1966
• Docket Number: No. 2,CA-CIV,2
• Citation: 410 P.2d 149,2 Ariz.App. 527
• Parties: Keith RIGGS, Appellant, v. HUACHUCA INVESTMENT COMPANY, Appellee. * 58.
• Court: Arizona Court of Appeals

Page 149

410 P.2d 149

2 Ariz.App. 527

Keith RIGGS, Appellant, v.HUACHUCA INVESTMENT COMPANY, Appellee. ^*

No. 2 CA-CIV 58.

Court of Appeals of Arizona.

Jan. 25, 1966.

Standage & Allen, by Gove L. Allen, Mesa, for appellant.

Hirsch, Van Slyke, Richter & Ollason, by Clague Van Slyke, Tucson, for appellee.

GORDON FARLEY, Superior Court Judge.

This is an appeal from an order setting aside a default judgment in garnishment against the appellee, Huachuca Investment Company.

The appellant had obtained a judgment against Rincon Builders and Developers, Inc., in May of 1962, and on July 27, 1962, obtained a writ of garnishment directed against the appellee, Huachuca Investment Company, and also against Nedmar Construction Company.Fred M. Busby was served as President of Nedmar Construction Company and promptly made a return of service indicating that Nedmar Construction Company was not indebted to Rincon Builders and Developers.The Deputy Sheriff's return on the summons against Huachuca Investment Company indicates that service of summons was had on the appellee, Huachuca Investment Company, at the same time service was had on Nedmar Construction Company by serving Mr. Busby who was President of both companies, but no answer to the writ of garnishment was filed by the appellee, Huachuca Investment Company.

Default judgment against the appellee, Huachuca Investment Company, was entered on September 10, 1962, in the amount of $4,197.37 and notice thereof was mailed to the appellee by the Clerk of the Court.Shortly thereafter the appellee, Huachuca Investment Company, moved to set aside the default judgment for lack of service of the writ of garnishment.The motion was resisted by the appellant who filed in support thereof a supplemental affidavit of the Deputy Sheriff that service of both writs had been made upon Mr. Busby.

Thereafter the matter was argued to the Court and on January 10, 1963, the motion to set aside the default judgment was granted.From the order setting aside the default judgment the appellant has appealed on the ground that the Trial Court abused its discretion in setting aside the default judgment for the reason that no positive or affirmative evidence was presented which showed or tended to show that the return of service by the Deputy Sheriff was false.

The appellee contends that the order setting aside the default was supported by sufficient evidence, but that even if the Trial Court erred or abused its discretion in setting aise the default, such order is not an appealable order.

The question of whether the order setting aside default judgment is appealable has been resolved by the case of Bateman v. McDonald, 94 Ariz. 327, 385 P.2d 208(1963), contrary to the appellee's contention, so that the sole issue to be resolved is whether or not the evidence was sufficient to support the Court's order setting aside the default.

Mr. Busby as President of Huachuca Investment Company filed an affidavit that he was not served with the writ of garnishment on July 30, 1962, or at any other time, although he was served however with a writ of garnishment on July 30, 1962, directed to Nedmar...