Tonelson v. Haines
| Citation | 2 Ariz.App. 127,406 P.2d 845 |
| Decision Date | 28 October 1965 |
| Docket Number | CA-CIV,No. 1,1 |
| Parties | Blanche TONELSON, Appellant, v. Ronald S. HAINES, Appellee. * 61. |
| Court | Court of Appeals of Arizona |
Burton M. Bentley, Phoenix, for appellant.
Rawlins, Ellis, Burrus & Kiewit, by William H. Burrus, Phoenix, for appellee.
This is an appeal from a judgment of the lower court setting aside a default and a default judgment on the grounds that there was no valid service upon the defendant.
The suit is one for malpractice against a surgeon. Service was attempted by a process server on the evening of February 6, 1962, at the defendant's home. The process server testified that he went to the door and was greeted by the defendant's wife. When she was informed of the purpose of the visit, according to the process server, he was informed that the defendant was not home 'to you.' The process server testified that: as the door was being abruptly closed in his face, he stated in a normal tone of voice, 'Lady, you have been served;' that he left the summons and complaint between the wooden door and the screen door of the home; and that thereafter he went on his way without noticing where the papers lay. He subsequently filed an affidavit of service in the action, indicating that service had been effectuated by '* * * leaving a copy of the summons and complaint with defendant's wife.'
The applicable rule of procedure pertaining to this service is Rule 4(d) Rules of Civil Procedure, 16 A.R.S., the pertinent portions of which read as follows:
'Service shall be made as follows:
Default judgment was taken on May 10, 1962, in the sum of $35,000.00. No effort was made to execute in pursuance of the judgment until more than six months thereafter. At the time of oral argument in this court, plaintiff's counsel stated that the reason for failing to take out any execution on the judgment within six months was so that there would be no opportunity for the defendants to file a motion in pursuance of Rule 60(c) for mistake or excusable neglect.
At the time of the hearing before the trial court on the motion to set aside default and default judgment, the defendant's wife testified to a substantially different version of the occasion in question than that given by the process server. She denied that he had told her he had a summons and complaint for her husband and denied that he had ever attempted to hand to her a summons and complaint. According to her, a strange man had come to the door on the evening in question and had asked for her husband. Her husband, who had been in surgery until 1 a. m. the night before that morning, and again until 6:40 p. m. in the evening in question, declined to see the stranger and she so informed him. She shut the door without ever hearing that service was being attempted and without ever knowing about the summons and complaint being left at the doorstep. The defendant and his wife both testified that the first they knew of the lawsuit in question was when a demand was made six months after the taking of judgment that the same be paid. They testified that there had been no previous demands from the plaintiff and no threats of a lawsuit.
After hearing the evidence, the trial court found as follows:
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Brewer v. Peterson
...even when the burden of proof requires 'clear and convincing' evidence, is largely a matter for the trier of fact. Tonelson v. Haines, 2 Ariz.App. 127, 406 P.2d 845 (1965). We believe it was proper for the trier of fact to consider all the inferences which arise from the evidence that the n......
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City of Tucson v. Melnykovich, 2
... ... Jagger, 83 Ariz. 150, 317 P.2d 942 (1957); Occidental Life Insurance Company of Cal. v. Marsh, 5 Ariz.App. 74, 423 P.2d 150 (1967); Tonelson" v. Haines, 2 Ariz.App. 127, 406 P.2d 845 (1965). As these authorities indicate, however, the burden to be met is not an impossible one ... \xC2" ... ...
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Wash. St. Enters. Ariz., L.L.C. v. Pellerito
...of suitable age and discretion and the person knows that the documents were left to accomplish service. Tonelson v. Haines, 2 Ariz. App. 127, 128-29, 406 P.2d 845, 846-47 (1965). In Tonelson, although the affidavit of the process server stated service had been made by leaving a copy of the ......
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Powell v. Industrial Commission
...ours, to judge the credibility of the witnesses and we hold that we are bound by its decision in this regard.' Tonelson v. Haines, 2 Ariz.App. 127, 129, 406 P.2d 845, 847 (1965). When considering appeals from the trial court, this Court will give due regard to the opportunity that the trial......