Western Indem. Co. v. Kendall

• Decision Date: 17 February 1925
• Docket Number: Civil 2209
• Citation: 233 P. 583,27 Ariz. 342
• Parties: WESTERN INDEMNITY COMPANY, a Corporation, Appellant, v. EDWARD KENDALL, Appellee
• Court: Arizona Supreme Court

233 P. 583

27 Ariz. 342

WESTERN INDEMNITY COMPANY, a Corporation, Appellant, v. EDWARD KENDALL, Appellee

Civil No. 2209

Supreme Court of Arizona

February 17, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley Windes, Judge. Affirmed.

Mr Richard E. Sloan, Mr. Greig Scott and Mr. C. R. Holton, for Appellant.

Messrs Jennings & Strouse, for Appellee.

OPINION

LOCKWOOD, J.

On February 20, 1922, Edward Kendall, hereinafter called the plaintiff, secured judgment in the superior court of Maricopa county against Silver King of Arizona Mining Company, a corporation, for $20,000. On September 29th of the same year he caused a writ of garnishment to be issued on the judgment against Western Indemnity Company, a corporation, hereinafter called the defendant.

Defendant answered the writ denying generally any indebtedness to the Silver King Mining Company, on the twentieth day of October 1922, and on the same date filed a petition for removal to the federal district court of Arizona. Plaintiff, on the 30th of October, demurred to the petition for removal, and on November 4th filed an affidavit and tendered issue controverting answer of garnishee, under the provisions of paragraph 1447, Revised Statutes of Arizona of 1913 (Civ. Code). On the 14th of November it was stipulated defendant should have until the 24th of November to answer the tender of issue. The superior court sustained the demurrer of plaintiff to the petition for removal, and on the 17th of November defendant filed a certified copy of the record in the federal court, and on the 24th of November filed an answer to the tender of issue made by plaintiff in the said federal court, which was duly served on plaintiff's attorneys. No answer, however, was filed in the superior court, and on the 25th of November, at the request of plaintiff, the clerk of the superior court of Maricopa county entered a default against defendant.

On December 9th the matter came on for hearing in the superior court, on the issue in garnishment. The court sent word to defendant's counsel, C. R. Holton, Esq., of the hearing, and the latter was present in court through the entire proceeding. There was a general discussion between Mr. Holton, counsel for plaintiff, Judge Struckmeyer, and the court to which we will refer later. Evidence was offered and the court rendered judgment against eh garnishee for $10,000.

On March 30, 1923, the United States District Court remanded the case to the superior court of Maricopa county, and the defendant moved to vacate the judgment of the superior court against it, and tendered an answer to the issue in garnishment. The superior court, on the 12th of June, 1923, denied said motion (annexing a condition that plaintiff remit a certain part of the judgment, which was duly done) on the ground the answer did not set up a meritorious defense to the balance of the judgment. Defendant appeals from the order denying the motion to vacate the judgment and set aside the default.

Plaintiff has moved to dismiss the appeal for want of jurisdiction in this court, on the ground that the superior court on June 12, 1923, when it made its order denying the motion to vacate the judgment, had lost jurisdiction of the proceedings under paragraph 600, Revised Statutes of Arizona of 1913 (Civ. Code). He cites the case of Leeker v. Leeker, 23 Ariz. 170, 202 P. 397, recently decided by this court, and argues that if the superior court had no jurisdiction to order the judgment vacated, the appeal does not lie from the refusal to make such an order. Counsel overlooked, however, that the superior court, at the time the motion was made, had such jurisdiction and only lost it, if at all, through the lapse of time. As was pointed out by us in Yutich v. Tovrea, 24 Ariz. 41, 206 P. 595, the effect of a failure or refusal to act on a motion for new trial was, as a matter of law, the overruling of the motion, and the court in that case considered the appeal as though from an order denying the new trial. We think this an analogous situation.

If no appeal lay under these circumstances, the trial court, by neglect or refusal to act in the time provided by statute, could entirely prevent any appeal. If it had jurisdiction on the 12th of June, there was an appealable order made on that date. If it lost jurisdiction on the 9th of June by lapse of time, the motion still being pending, was overruled in effect by operation of law, as of that date. The motion to dismiss the appeal is denied.

The first question raised on the appeal is whether the clerk has a right to enter a default on the failure of the garnishee to meet an issue tendered in garnishment proceedings. It is not necessary, however, that we pass on this point. Defendant had filed no answer and was in default, even though it had not been entered. Had the answer been filed even after default it could not have been disregarded. Pritchard v. Huntington, 16 Wis. 569. It would, however, have been stricken on motion. 31 Cyc. 633.

The court had called the case for trial, and defendant asked leave to file an answer. If the answer would have been stricken on motion had defendant actually filed it without leave of court, certainly, on objection by plaintiff, the court could in its discretion refuse to receive it as it was not required to do a vain thing.

But, of course, it must...