APPEAL from an order of the Superior Court of the County of Yuma. Henry C. Kelly, Judge. Order reversed and cause remanded, with instructions.
Mr. William H. Westover, for Appellant.
Mr. Glenn Copple, for Appellee.
[39 Ariz. 419] LOCKWOOD, J.
On the twenty-ninth day of April, 1931, Jose Beltran, hereinafter called plaintiff, filed a suit in replevin in the superior court of Yuma county against Jack Roll, hereinafter called defendant, seeking to recover the possession of certain mesquite wood. Summons was issued and duly served upon defendant on April 30, 1931, in Yuma county. On May 22d, defendant not having appeared or answered, plaintiff filed his praecipe for default, which was on that date entered by the clerk. Thereafter and on May 29th, plaintiff appeared in court and offered evidence in support of the complaint, at the conclusion of which judgment was rendered in his favor for the possession of the property described in the complaint, or for the value thereof, fixed by the court at the sum of $1,500, in case delivery could not be had. Thereafter and on June 12th, defendant served on plaintiff a motion to set aside the judgment, supported by affidavits of Donald B. Wisener, clerk of the court, M. O. Kimbrough, deputy clerk, and defendant and Glenn Copple, his attorney. The motion to vacate the judgment and set aside the default was submitted on the affidavits, and the court made an order granting the motion, whereupon plaintiff appealed from such order to this court.
It is the law in this state that when a default has been entered upon defendant's failure to answer and judgment rendered thereafter upon the default, in order that the judgment may be set aside and defendant permitted to answer, a motion to that effect must be supported by an affidavit of merits which shows on its face that defendant has a substantial and meritorious defense, and of what it consists. Copper [39 Ariz. 420] King of Arizona v. Johnson, 9 Ariz. 67, 76 P. 594; Arizona Min. etc. Co. v. Benton, 12 Ariz. 373, 100 P. 952; Security Trust & Savings Bank v. Moseley, 27 Ariz. 562, 234 P. 828. It must also appear that the failure of defendant to answer was the result of excusable conduct on his part. Section 3859, Rev. Code 1928; Arizona Min. etc. Co. v. Benton, supra; Lynch v. Arizona Enterprise Min. Co., 20 Ariz. 250, 179 P. 956; Gutierrez v. Romero, 24 Ariz. 382, 210 P. 470; Garden Development Co. v. Carlaw, 33 Ariz. 232, 263 P. 625.
Taking the showing made by the affidavits in the strongest possible manner in behalf of defendant, as we must take them since the trial court granted the motion, it appears from the affidavit of Glenn Copple, attorney for defendant, that on May 18th he left with the clerk of the superior court a general demurrer to the complaint in the action, but did not at the time pay or tender to the clerk the statutory filing fee. He told the latter, however, that he, Copple, was extremely busy at the time, and if the clerk would file the general demurrer, and bring him a receipt therefor, he would immediately pay the filing fee, whereupon the clerk agreed to file the demurrer and bring the receipt to him at a later time. By reason of this promise of the clerk, Copple was led to believe and did believe that the demurrer was filed within the statutory time, and knew nothing about the default being entered or judgment being rendered thereon until so informed by his client some days later. The affidavit of merits made by defendant reads as follows:
"Jack Roll, being first duly sworn deposes and says: that he is the defendant in the above entitled action; that he employed Glenn Copple, Attorney at Law, to file an answer in said action; that he has a full, complete and absolute defense to the said complaint; that he the said plaintiff is now and should [39 Ariz. 421] be estopped from ever asserting any claim on the subject matter of the said suit; that heretofore to wit: on the 12th day of December, 1930, the said plaintiff in cause number 7307 filed in the said Superior Court of the State of Arizona in and for the County of Yuma styled, Jose Beltran, Plaintiff vs. Jack Roll, Defendant, sued the defendant upon the identical matter now in question in the present suit and thereafter on to-wit the 26th day of December, 1930, judgment was duly entered in favor of the plaintiff and against the defendant for the sum of $421.64; that the said files and records in case number 7307 is made a part of this affidavit; that it is unjust for the said plaintiff to maintain this action in as much as the matter had been fully settled by the said judgment heretofore mentioned; that there is no merit or claim in the said plaintiff's suit against the said defendant."
Plaintiff first suggests that, even though the general demurrer in question had been filed within the time, the court should have rendered the judgment it did on the pleadings, and urges in support of this position the provisions of section 3780, Revised Code of 1928, which reads, in part, as follows:
"Sham, irrelevant or frivolous answers and frivolous demurrers may be stricken out, or judgment rendered notwithstanding the same as for the want of an answer."
Plaintiff insists it is obvious on the face of the record that a general demurrer to the complaint herein is frivolous, and that therefore it was the duty of the court to render judgment as for the want of an answer, even though the general demurrer had been filed.
A frivolous demurrer is one which raises no serious question of law. Johnston v. Pate,83 N.C. 110; Morgan v. Harris,141 N.C. 358, 54 S.E. 381; Nolen v. State, 48 Okl. 594, 150 P. 149; Germain v. [39 Ariz. 422] Harwell,108 Miss. 396, 66 So. 396. The ...