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Colboch v. Aviation Credit Corporation

Supreme Court of Arizona

February 25, 1946

COLBOCH
v.
AVIATION CREDIT CORPORATION

Page 585

Appeal from Superior Court, Navajo County; W. E. Ferguson, Judge.

Reversed and remanded with directions.

John W. Corbin and Herbert Watson, both of Phoenix, for appellant.

Dodd Greer, of Holbrook, for appellee.

Morgan, Judge. Stanford, C. J., and LaPrade, J., concurring.

OPINION

Morgan, Judge.

Page 586

[64 Ariz. 90] Plaintiff-appellee filed suit for balance due from defendant-appellant Colboch on certain promissory notes, and to foreclose chattel mortgage securing the indebtedness. It was alleged that the original debt of $ 24,033 had been reduced by various payments, leaving a net balance due of $ 1,995.53, with interest thereon, and an additional sum of $ 100 for expenses incurred by plaintiff in search for the mortgaged property. The prayer was for judgment for $ 2,600, with interest, and that the mortgaged property be sold and the proceeds applied on the amount adjudged to be due. The rights of other defendants mentioned in the complaint need not be considered.

On February 17, 1944, the following demand for bill of particulars and itemized statement was made by defendant: "Comes now the defendants herein and hereby [64 Ariz. 91] make a demand for an itemized statement and bill of particulars of the account or items of indebtedness herein."

On the same date, the following unverified answer was filed: "Comes now Troy L. Colboch, and other defendants herein, and denies generally and specifically each and every allegation in said complaint contained."

On February 19 plaintiff served and filed motion for judgment on the pleadings, upon the ground that the answer was sham and frivolous and did not comply with the rules of procedure. No motion was made to strike the demand for bill of particulars or the answer, nor does any order appear showing any definite disposition of either the motion or the answer.

The cause was not set for trial, but the record discloses that at the calendar call on March 1st the court ordered that plaintiff take judgment as prayed for in its complaint, and that the mortgage be foreclosed. Following the entry of this order, the defendants not being present in court nor represented, evidence was taken to ascertain the balance due, and thereupon a written judgment was signed and filed. In this judgment the court finds a balance of $ 1,549.45 due on the original indebtedness, and other expenses and cost items, making in all the sum of $ 2,073.72.

On April 29 defendant gave notice of appeal to this court, and at the same time filed a motion to set aside the judgment. Later the same day he filed motion for leave to file amended answer, submitting therewith his proposed amended answer. On May 25 defendant filed another motion to set aside the judgment. These motions were denied by the court on the ground that it had no jurisdiction since the case was pending on appeal. A second notice of appeal was then given by defendant from the order refusing to set ...


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