Shemaitis v. Superior Court for Pima County, 2
| Decision Date | 22 December 1976 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 114 Ariz. 288,560 P.2d 806 |
| Parties | Peter SHEMAITIS and Eda Shemaitis, husband and wife, Petitioners, v. The SUPERIOR COURT of the State of Arizona FOR PIMA COUNTY, the Honorable Gilbert Veliz, a Judge thereof, and SALVATION ARMY, Real Party in Interest, Respondents. 2395. |
| Court | Arizona Court of Appeals |
Petitioners challenge the trial court's granting of a motion to set aside an entry of default. Since there is no remedy by appeal, intervention by way of special action is appropriate and we take jurisdiction. The respondent real party in interest was served with a copy of summons and complaint on June 28, 1976, the complaint stemming from a motor vehicle accident. On July 27, default was entered, no appearance or answer having been made in the said action. Thereafter, on August 11, defendant Jack Eugene Daniels, an agent of the real party in interest, who had not been served with a copy of summons and complaint, filed an answer. On August 20, the petitioners were awarded default judgment against the real party in interest only and on August 25, the real party in interest filed a motion to set aside the default which was extended at the hearing to include the judgment. After hearing on the motion, the respondent court granted the motion. Petitioners take the position that since the real party in interest did not show excusable neglect, the granting of the motion by the trial court was an abuse of discretion and should be vacated. We agree with this contention.
According to affidavits filed by the real party in interest, the summons and complaint were forwarded to the Salvation Army's regional headquarters on June 28. Thereafter, the complaint was forwarded to the office of its insurance adjusting company in Los Angeles. A delay then occurred until August 11, at which time the insurance adjusting company forwarded the file to its Phoenix office. There is no explanation of what transpired between June 28 and August 11. According to the affidavits of one of the attorneys for the real party in interest and its agent, he received notice on August 11 that default had been entered and on that date he filed an answer only on behalf of the agent Daniels. However, Daniels had not even been served with a copy of the summons and complaint. Nine...
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Richas v. Superior Court of Arizona In and For Maricopa County, 15890-SA
...entry of default is not appealable; therefore, review by special action proceedings is appropriate. Shemaitis v. Superior Court, 114 Ariz. 288, 288, 560 P.2d 806, 806 (1976). FACTS On May 23, 1980, petitioner filed a complaint in the Superior Court of Maricopa County, seeking recovery of da......
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Sullivan & Brugnatelli Advertising Co., Inc. v. Century Capital Corp., 1
...Despite this line of authority, Division Two of this court accepted jurisdiction of a special action in Shemaitis v. Superior Court, 114 Ariz. 288, 560 P.2d 806 (App.1976), on the premise that it did not have jurisdiction to consider an appeal from a trial court's order setting aside a defa......
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Tarr v. Superior Court In and For Pima County
...petitioner had obtained against the real parties in interest. Because the order is not appealable, see Shemaitis v. Superior Court, 114 Ariz. 288, 560 P.2d 806 (App.1976), and because we disagree with the majority opinion in Anderson v. Wilson, 140 Ariz. 64, 680 P.2d 200 (App.1984), we acce......
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Sanders v. Cobble
...petitioner had obtained against the real parties in interest. Because the order is not appealable, see Shemaitis v. Superior Court, 114 Ariz. 288, 560 P.2d 806 (App.1976), and because we disagree with the majority opinion in Anderson v. Wilson, 140 Ariz. 64, 680 P.2d 200 (App.1984), we acce......