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Daniel v. Telford

Supreme Court of Arizona

January 24, 1938

LOTO S. DANIEL and BESSIE J. DANIEL, His Wife E. C. SEALE and CLARA L. SEALE, His Wife, Appellants,
v.
H. A. TELFORD and FLORENCE M. TELFORD, His Wife, EDNA A. MUNGER and CHARLES P. MUNGER, Her Husband, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Appeal dismissed.

Mr. Ziba O. Brown and Mr. E. S. Clark, for Appellants.

Mr. James E. Nelson and Mr. Stephen B. Rayburn, for Appellees.

OPINION

Page 374

[51 Ariz. 198] LOCKWOOD, J.

The record on this appeal presents the following state of facts, and the only question for us to determine is the law applicable thereto.

On the 28th of February, 1936, Loto S. Daniel and Bessie J. Daniel, his wife, E. C. Seale and Clara L. Seale, his wife, hereinafter called plaintiffs, filed a complaint against H. A. Telford and Florence M. Telford, his wife, Edna A. Munger and Charles P. Munger, her husband, hereinafter called defendants, seeking to recover for an alleged breach of contract by [51 Ariz. 199] defendants. On the 14th of March the defendants demurred to plaintiffs' complaint. On the 18th of March, apparently on an ex parte oral motion, the court extended the time for the filing of answer by defendants until March 28th. On Monday, the 23d of March, being the regular law and motion day of the superior court of Maricopa county, the defendants' demurrer was passed. On March 30th, the next law and motion day, the court ordered that the demurrer be submitted and taken under advisement. So far as the record shows, plaintiffs had never been notified of any of these orders. On the 8th of April, counsel for plaintiffs filed an affidavit which contained the following statement:

"That deponent was not aware of the rule of practice of this court which automatically sets demurrers for hearing, and he supposed that as is the case in other matters, he would be advised of any hearing and be given time to attend; that had he been advised or had he known of the time of hearing, he would have attended and would have been present at the hearing of such demurrers.

"That the said plaintiffs in this case have a good cause of action against the said defendants, and they respectfully ask for an opportunity to present same."

And on the 16th of April he moved for a default against defendants, and that all orders previously made by the court in the premises be vacated. Thereafter, and on April 20th, the court made the following order:

"It is hereby ordered denying Plaintiffs' Motions to vacate the order extending time in which Defendants may answer. It is further ordered allowing Plaintiffs' counsel, ten days in which to file his response to Defendants' motion and demurrers."

And on June 15th the following minute entry appears:

[51 Ariz. 200] "It is ordered the demurrer of the defendants and each of them to the complaint of plaintiffs is sustained, and Plaintiffs are given fifteen days in which to amend."

Plaintiffs having failed to amend within the 15 days allowed by the preceding order, on July 9th defendants moved for judgment on the pleading, while on July ...


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