Appeal from Superior Court, Maricopa County; Harold R. Scoville, Judge.
Reversed and remanded.
Hill, Robert & Hill, of Phoenix, for appellant.
Baker & Whitney, of Phoenix, for appellee.
Stanford, Chief Justice. LaPrade and Morgan, JJ., concur.
Stanford, Chief Justice.
[64 Ariz. 300] For the purpose of this appeal we will style the appellant, the defendant, and the appellee, the plaintiff, as they appeared in the superior court.
The issue to be determined in the case is did the trial court abuse its discretion in denying a motion to set aside default taken in this case?
Complaint was filed July 12, 1945, and through a private process server, defendant was served according to the return on July 12, 1945 at 7:52 p. m. The affidavit of service was filed with the clerk of the superior court July 14, 1945. Service was made in Maricopa County where the suit was brought and under our law the defendant had twenty days in which to answer. Twenty-one days after service of process plaintiff took default against defendant, and on the same date default judgment was rendered against defendant for the sum of $ 6,050 plus $ 21.80 as costs. On August 4, 1945, being but two days after judgment, defendant filed his answer to the complaint, the same having been drawn by the defendant and signed by him, said answer having been sent from Clifton, Arizona, being in the eastern part of the state, by a friend of defendant's.
On August 8, 1945, defendant, through his attorneys, filed his verified motion to vacate the judgment and to set aside default. On said motion hearing was had and testimony taken on August 14, 1945, and on August 16, 1945, the trial court entered its order denying defendant's motion. Testimony in the case showed that defendant lived at Clifton, Arizona, where he had a drug store, and he had other places of business in Parker and Phoenix.
The testimony of the defendant shows that he was in Phoenix about nine or ten days during the month of July, 1945; that he was in Parker two days and the rest of the time in Clifton. The distance from Phoenix to Clifton is approximately 225 miles and the distance from Phoenix to [64 Ariz. 301] Parker is approximately 164 miles. Defendant testified that he left Phoenix to return to Clifton after having been in Phoenix on the 18th day of July; that he was served with process at his place of business in Phoenix at about 6:30 on the 18th day of July; that he left for Clifton about 2:30 or 3:30 on the morning of July 19th.
Defendant has but the following single proposition of law in reference to his assignment of error:
"Where a litigant timely applies for relief from a default judgment taken against him because of his mistake, inadvertence, surprise or excusable neglect, it is the duty of the court to resolve all doubts in favor of such litigant and to exercise its judicial discretion in a manner not to impede or defeat the ends of substantial justice but in a reasonable degree to bring about a judgment upon the merits."
Our Section 21-1502, A.C.A.1939, is:
"Mistake -- Inadvertence -- Surprise -- Excusable neglect. -- On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six (6)
months after such judgment, order or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, or (2) to set aside within one (1) year a judgment obtained against a defendant not actually personally notified."
In our recent case of Postal Benefit Insurance Co. v. Johnson, Ariz., 165 P.2d 173, 178, we said:
"It is the law that this statute vests in the trial court the discretionary power to determine whether or not the party may be ...