PERRY A. YEAST, Also Known as P. A. YEAST, Appellant,
C. L. FLECK, WALTER J. FLECK and LESTER J. FLECK, Appellees
APPEAL from a judgment of the Superior Court of the County of Mohave. J. W. Faulkner, Judge. Judgment reversed and cause remanded with directions.
Mr. E. Elmo Bollinger, for Appellant.
Mr. Elmer C. Coker and Mr. J. Hubert Smith, for Appellees.
[58 Ariz. 470] ROSS, J.
The plaintiffs, C. L. Fleck, Walter J. Fleck and Lester J. Fleck, obtained a judgment against defendant Perry A. Yeast, quieting their title to certain waters, alleged to be running waters and appropriable, and to certain easements over public lands to carry said waters to their millsites and mines for mining, milling and domestic purposes. From this judgment, Yeast has appealed.
It is alleged in the complaint that said waters have their source on school Section 36, Township 29 North, Range 17 West, G. & S.R.B. & M., Mohave County, Arizona, and were originally appropriated in 1884 by one Patterson, to whose rights plaintiffs have succeeded by a regular chain of title.
The action was also against The State of Arizona and Ben F. Griffith. On the day of
trial (May 14, 1940) the action was dismissed as to Griffith. The State of Arizona filed an answer, to which we shall later refer.
It appears that Yeast, when served with summons or soon thereafter, employed Carl D. Hammond, of Kingman, as his attorney and, while no answer by Yeast was ever filed, his attorney, at least two different times, filed and argued motions to make the complaint more definite and certain in some of its allegations and that such motions were granted. There is a stipulation in the record, signed by attorneys for plaintiffs and by Hammond as attorney for Yeast, giving the latter until February 1, 1940, to file [58 Ariz. 471] an answer to the "second amended complaint," the one on which the case was tried. No such answer nor any other pleading of any kind was ever filed by Yeast until after judgment was ordered. On January 23, 1940, Hammond withdrew from the case with the court's approval. While Yeast was present at the beginning of the trial and was put on the witness stand and cross-examined as an adverse witness, he took no part in the trial. Upon inquiry from the court as to whether he had an attorney, Yeast answered: "No, I haven't; I didn't know I needed one. I ain't ready for any trial." And as soon as he was excused as a witness by defendant, he left the court room and did not return. The plaintiffs asked that default judgment be entered against said defendant for not answering the second amended complaint within the time stipulated by the parties. The court expressed doubt of its right to enter the default judgment, no notice thereof having been given Yeast as provided in section 21-1206, Arizona Code 1939 (Rule 55 (b), Rules of Civil Procedure), but ordered it entered. Upon further discussion between court and counsel, plaintiffs moved that the order granting default or default judgment be set aside, which was done. The case then proceeded to trial on its merits. Plaintiffs put defendant on the witness stand as an adverse witness and examined him and one of the plaintiffs was sworn and testified, and certain documentary evidence was introduced. In other words, the case was tried as though the defendant was present and contesting the litigation.
The defendant now contends that the court was without jurisdiction to proceed as it did without giving a three-day notice to defendant as provided by statute. Section 21-1205 makes it the duty of the clerk to enter a party's default when he "has failed [58 Ariz. 472] to plead or otherwise defend" and that fact appears by affidavit or otherwise. The next section (21-1206) provides that if the party against whom a default judgment is sought "has appeared in the action" he shall be served with written notice of the application for judgment at least three days prior to the hearing of such application. Since there was an appearance in the action by Yeast, no default judgment could be entered against him until he was served with the three-day written notice and given an opportunity to be heard thereon.
Plaintiffs, however, contend that section 21-1206 has no application to the situation here for the reason that the case was tried on its merits at the time it was set for trial, and defendant was personally present at such trial. Certainly under the facts plaintiffs were entitled to a default for failure to answer, and to a default judgment upon giving the proper notice as provided by the statute, but we hardly think that it was mandatory that they follow that procedure. They might have waived the defendant's failure to answer, 31 American Jurisprudence 127, section 510, and that is what they did when they proceeded to introduce their evidence as though defendant was present in court and had announced read for trial. So, we conclude that this contention is not well taken.
One of the grounds upon which defendant seeks relief from the judgment is that his failure to appear and defend said action was excusable negligence. In support of such ground, he filed his affidavit on May 27, 1940, in which he shows that for two years before the trial he had a grazing lease on said Section 36 from the State of Arizona; that he owned improvements thereon used in connection with his stock raising and had been informed that the state owned [58 Ariz. 473] the waters on said section and that his rights as lessee
"would be protected because of the ownership of the state; affiant was also informed by Mr. W. E. Polley, Assistant Attorney General, that if anyone else could claim the water that the state had the authority under the law to sell Section 36 and compel the purchaser to pay the affiant for his improvements; that affiant believed and was of the opinion that under the circumstances he did not need the services of an attorney and that there was no necessity for ...