R. L. SMITH, Appellant,
WASHBURN & CONDON, a Copartnership Composed of F. L. WASHBURN and J. W. CONDON, Appellees
APPEAL from an order of the Superior Court of the County of Pima. W. A. O'Connor, Judge. Order appealed from affirmed.
Mr. E. T. Cusick, for Appellant.
Messrs. Mathews & Bilby, for Appellees.
[38 Ariz. 150] LOCKWOOD,
F. L. Washburn and J. W. Condon, copartners as Washburn & Condon, hereinafter called plaintiffs, in 1928 brought suit against R. L. Smith, hereinafter called defendant. The latter answered the complaint and filed a cross-complaint, which last plaintiffs answered. Thereafter certain depositions were taken and filed, and nearly fifteen months after the institution of the suit it was set for trial. Upon the date of the trial, January 21, [38 Ariz. 151] 1929, plaintiffs appeared by their attorneys, Mathews & Bilby, and defendant appeared by his attorney, Ben C. Hill. The latter moved for a continuance of the case, and the court, after duly considering the motion, denied it, and ordered that the trial proceed, whereupon it was stipulated and agreed in open court between counsel that judgment be confessed and entered against defendant in favor of plaintiffs in the sum of two thousand dollars, and that the cross-complaint filed by defendant against plaintiffs be dismissed.
Thereafter, on July 12, 1929, defendant filed a motion to vacate and set aside the judgment, which was heard July 16th. Affidavits, documentary evidence, and oral testimony were introduced in support of the motion by defendant, and at the conclusion of his case plaintiffs offered evidence, but the court declined to hear it, and overruled the motion, and from the court's order to that effect this appeal is prosecuted.
There is but one question raised by this appeal, and that is whether or not the court abused its discretion in refusing to set aside and vacate its judgment. It is the ordinary rule of law that the action of the trial court in either refusing or granting a motion of this kind is discretionary, and will not be reversed by an appellate court except for abuse of discretion. 34 C.J. 365; 15 R.C.L. 720. The question then is whether such discretion was abused. In order to determine that, we must consider the facts leading up to the entry of judgment of January 21, 1929, as disclosed by the record before us.
It appears that plaintiffs at all times during
the process of this proceeding up to and including the entry of judgment were represented by Messrs. Mathews & Bilby, and defendant was represented by Mr. Ben C. Hill, all being well known and reputable attorneys of Tucson. Negotiations had been under [38 Ariz. 152] way between the parties for a settlement and compromise of the case for a a consideration period of time, and on the 8th of January Hill wrote defendant, informing him that plaintiffs' attorneys would not consent to a continuance, but were willing to agree that a compromise judgment might be entered in their favor. He advised the acceptance of this. On January 13, 1929, Hill wired defendant as follows:
"Bilby has agreed to take the judgment for two thousand for purpose of fighting out garnishment with bank and take what he can get from bank in full satisfaction of judgment Stop As you only had one-third interest in amount garnished and Los Angeles Packing claims that I think it would be foolish not to accept Stop It will cost you more than that to fight the case Stop You have no chance to recover against them and trial will probably result in judgment for more than two thousand Stop Furthermore doubt if judge will grant continuance on showing I can make do not fool yourself Stop I recommend acceptance Answer to-day."
On the fifteenth defendant replied with the following telegram:
Just a postponement if possible can get financial aid later in if not accept proposition as you advise mailing letter in regards to that other matter."
Thereafter on the 21st Hill moved for a continuance, which motion was resisted by plaintiffs' attorneys, and the court, after due consideration, overruled the motion, and thereafter ...