APPEAL from an order of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Order reversed in part and affirmed in part.
Mr. Oliver J. Laubscher and Mr. John F. Ross, for Appellant.
Messrs. Gilmore & Herring, for Appellee.
[59 Ariz. 164] LOCKWOOD, C.J.
Cyrus Farwell, plaintiff, brought suit against Ben Heney to quiet title to certain mining claims as against all persons, except the United States of America, and to secure a restraining order prohibiting Heney from interfering with plaintiff's use of the claims. Answer was duly filed by Heney, and thereafter Swisshelm Gold Silver Company, a corporation, intervener, asked leave to file an answer and cross complaint in intervention. The motion was granted and the answer and cross complaint duly filed. Intervener asked leave to bring in O. Reynolds and Willie Fullinwider as third-party defendants, which was granted, and summons and cross complaint were served on each of them. Reynolds and Fullinwider failed to appear or answer the cross complaint, and plaintiff failed to file any answer to the cross complaint, within the period provided by law. Thereafter intervener's attorneys filed an affidavit with the clerk of the court to this effect, and default was duly entered against plaintiff, Reynolds and Fullinwider. Later intervener served written notice on plaintiff that it would apply to the court for an entry of judgment by default against plaintiff upon the cross complaint.
The motion finally came up before the court on March 28th, at which time plaintiff appeared and resisted its granting, no appearance being made on behalf of Reynolds and Fullinwider. On April 14th the court granted the motion, and on April 15th a formal written judgment, in favor of intervener and against plaintiff and the third-party defendants on the cross complaint, was filed. On April 28th plaintiff filed a motion to set aside the judgment of April 15th as against him. Neither he nor the third-party defendants made any request that the judgment be set aside as against the latter.
On May 3rd, intervener objected to the motion to set aside on two grounds, (a) that the affidavit of [59 Ariz. 165] merits filed with the motion contained the same subject matter and raised the identical issue which had been ruled upon by the court on April 14th, and (b) that plaintiff had failed to show excusable neglect for his failure to answer within the time required by law, and failed to show a substantial or meritorious defense to the cross complaint.
The court finally granted the motion and ordered the default judgment set aside and vacated as against both plaintiff and third-party defendants. At the time of this ruling, intervener asked that the court impose conditions upon the setting aside of the judgment, for the protection of certain alleged rights of intervener in the personal property located upon the claim, but the court refused to do so, and this appeal was taken.
The first question is whether the court could consider a motion based on the same ground which had previously been ruled on adversely. This is answered in the affirmative by Collister v. Inter-State, etc., Assn., 44 Ariz. 427, 38 P.2d 626, 98 A.L.R. 1020.
The next is whether the court erred in setting aside the judgment as to the third-party defendants. Plaintiff's motion was merely:
"Wherefore, your affiant moves this Honorable Court for an order setting aside that certain default judgment entered by the above entitled Court against this affiant and in favor of the Swisshelm Gold Silver Company, a corporation."
The right of a trial court to amend or modify its orders and judgments is based upon sections 21-1501, 21-1502, Arizona Code ...