Kenneth Biaett, of Glendale, for appellant.
Orme Lewis, of Phoenix, for appellee.
Don T. Udall, Superior Judge. Udall, Stanford, Phelps and De Concini, JJ., concur.
Don T. Udall, Superior
[70 Ariz. 166] This is a joint appeal from an order setting aside a default entered by the clerk and an order granting summary judgment. The record reveals the following pertinent facts: On October 14, 1947, one Lynn M. Laney commenced an interpleader action against D. H. Biaett, appellant herein, Myrtle Biaett, his wife, and the Phoenix Title and Trust Company, appellee herein. On November 3, 1947, at 2:35 p. m., the appellant filed a cross-claim against the appellee alleging among other things that appellee, prior to the date of this suit, had filed an interpleader action in the Superior Court of Maricopa County, Civil Cause No. 55167, against the appellant and other parties, and that, while waiting for said former action to be instituted and in defending same, appellant incurred expenses in the amounts of "$ 143.00 for taking care of the grove, on the property, from May 22, 1945, to July 1, 1945, and $ 300.00 -- the fee paid to L. M. Laney, the attorney D. H. Biaett secured, to defend the interpleader action, at the suggestion of the Phoenix Title and Trust Co."
On the same day the appellant's cross-claim was filed, the appellee, at 11:05 a. m., through its attorney filed answer to the Laney interpleader action and also filed its cross-complaint against the appellant and others. Thus in spite of the fact that appellee had appeared some three hours previously and was then represented by an attorney of record, appellant attempted to perfect service of his cross-claim upon the appellee by mailing a copy thereof in an envelope addressed to "Mr. George W. Mickle, Title and Trust Bldg., Phoenix, [70 Ariz. 167] Arizona" without designating him to be an officer of said appellee corporation. Service was purportedly made pursuant to Rule 5(b), Sec. 21-322, A.C.A.1939. Upon filing affidavit of mailing and after time to answer the cross-claim had expired, the clerk of the superior court entered default against the cross-defendant (appellee), on November 29, 1947. Thereafter, to-wit: on December 29, 1947, the appellee filed its motion, supported by affidavit of its attorney, to set aside entry of default alleging excusable neglect in not answering the cross-claim within the statutory time, and further requesting the court to sanction the filing of its answer to said cross-claim which had been filed on December 8, 1947. The answer was in effect a general denial to the cross-claim and in addition set up
the following affirmative defense, viz.: "* * * this defendant alleges that the agreement claimed by cross-claimant, D. H. Biaett, if made, which defendant positively denies, could only have arisen out of the transactions or occurrences and subject matter of an action in this court in Cause No. 55167, in which this defendant was plaintiff and cross-claimant D. H. Biaett was a defendant, and which action was dismissed with prejudiced by this Court. Further, at the time of filing its answer the appellee also filed motion for summary judgment. On January 9, 1948, the lower court entered its order setting aside the default entered by the clerk and also entered an order granting appellee's motion for summary judgment against appellant. From these orders the appellant prosecutes this appeal.
By the first assignment of error appellant complains that it was an abuse of discretion for the trial court to set aside the default entered against the appellee, Phoenix Title and Trust Company, on the appellant's cross-claim. Had there been a valid service in the first instance of this pleading seeking affirmative relief, we would be inclined to agree with appellant that appellee's motion and supporting affidavit asking the court to set aside the default on the ground of excusable neglect were insufficient to warrant such action. However, we are convinced that upon the face of this record the clerk was without jurisdiction to enter a default on the cross-claim as it had not been properly served. Therefore, if the default was a nullity no good purpose would be served in analyzing the affidavit and motion to determine if they show excusable neglect.
Rule 5(b), supra, provides the manner in which pleadings filed subsequent to the original complaint shall be served. The portion of said rule applicable to the question before the court reads as follows. "* * * Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the Court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to [70 Ariz. 168] him at his last known address or, if no address is known, by leaving it with the clerk of the court. * * *" (Emphasis supplied.)
A cross-claim is considered to be a pleading filed subsequent to the original complaint and should be served in accordance with the provisions of Rule 5(b), supra. This procedural requirement is supported by Moore's Federal Practice, Vol. 1, page 678, which reads as follows: "The answer (or other pleading) which contains the counterclaim or cross-claim should be served in accordance with Rule 5, which generally means service of the answer upon plaintiff's attorney, in the case of the counterclaim, and upon the co-party's attorney in the case of a cross-claim. Such personal service as is required for the service of a complaint is not required for the service of the answer, ...