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Rawlins v. Wilson

Supreme Court of Arizona

December 1, 1947

RAWLINS
v.
WILSON

Appeal from Superior Court, Coconino County; H. L. Russell, Judge.

Suit by Ivan T. Wilson against Marcus E. Rawlins for money recovery. After entry of default judgment, defendant moved to set aside the judgment. From the order denying the motion, and the judgment, defendant appeals.

Judgment vacated and cause remanded.

H. K. Mangum and T. M. Flick, both of Flagstaff, for appellant.

Urban R. Miller, of Williams, for appellee.

Udall, Justice. Stanford, C. J., and La Prade, J., concur.

OPINION

Udall, Justice.

The sole question to be determined on this appeal is, did the trial court abuse its judicial discretion in denying a motion to set aside a default judgment theretofore entered in the case?

Plaintiff filed suit against defendant on June 14, 1946, seeking to recover a judgment for money plaintiff had been required to pay on a promissory note, dated September 29, 1945, for $ 750 executed by plaintiff and defendant to the Bank of Arizona at Williams. Plaintiff alleged that he was a mere accommodation signer on said note and that he was now subrogated to the rights of the original payee. The defendant [66 Ariz. 268] though personally served on June 14 with a summons and copy of the complaint failed to answer, and on July 31, judgment was regularly entered against him for the sum of $ 900.34, which included principal, interest, attorney's fees and costs. Thereafter on August 28, defendant filed a motion to set aside this default judgment and after a hearing had, order was entered on October 30, 1946, denying said motion, whereupon an appeal was taken from said judgment and order.

Sec. 21-1502, A.C.A. 1939, provides as follows:

"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."

This statute is a duplicate of Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, from

Page 323

whence it was taken, and a California statute, in turn, served as a model for this Federal Rule. Ledwith v. Storkan, D. C. 2 F.R.D. 539; Wallace v. United States, D. C. 2 F.R.D. 173; United States v. Mutual Const. Co., D. C. 3 F.R.D. 227. This rule should be broadly interpreted, liberally construed, and each case under it must be ...


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