EINBODEN et al.
MARTIN et al
Order setting summary judgment aside vacated with instructions to reinstate judgment dated August 9, 1948.
Fred W. Fickett, William S. Dunipace, Robert S. Tullar, Tucson, for appellants.
Oliver J. Laubscher, Tucson, for appellees.
Udall, Justice. La Prade, C. J., and Stanford, Phelps and De Concini, JJ., concurring.
[70 Ariz. 246] Plaintiffs (now appellees) Le Roy S. Martin and Lettie H. Whitcomb, a single woman, filed suit against defendants (now appellants) E. E. Einboden and Dorothy J. Einboden, his wife, and Associated Mining and Milling Company of Nevada, a copartnership, to recover unpaid monthly payments in the aggregate sum of $ 2,000 allegedly due under the terms of a certain written lease and option agreement. The defendants filed an answer to the complaint together with a motion for summary judgment. This motion was predicated upon the theory that the agreement, above referred to, was an outright contract of sale and purchase of real property rather than a mere lease and option agreement. A hearing was had and on August 9, 1948, the court granted defendants' motion for summary judgment resulting in a dismissal of plaintiffs' complaint, although the record showed there was an issue of fact to be determined as to whether the unilateral option to purchase had been exercised.
Fourteen days later, on August 23, 1948, the plaintiffs filed a motion to vacate and set aside the summary judgment and order of dismissal theretofore entered. The sole basis for this motion was that the court had committed legal error in construing the contract before it and in entering the original judgment. Reliance was had upon our ruling in the case of Whalley v. George, 52 Ariz. 267, 80 P.2d 449. Upon having a second look at the matter the trial court became convinced, and properly so, that the order granting the motion for summary judgment had been improvidently and erroneously entered. While somewhat dubious of its jurisdiction to correct its mistake of law, due to the lateness of the filing of plaintiffs' motion to vacate, nevertheless on October 9, 1948, the court entered the following order: "It is ordered that the motion to vacate and set aside summary judgment be and hereby is granted, and in the event that the court does not have authority or jurisdiction to grant said motion, the court hereby vacates and sets aside its former order made herein granting defendants' motion for summary judgment, based upon the motion for summary judgment filed June 19, 1948."
The validity of this order is the sole question raised by this appeal as no questions
relative to the merits of the case are before us.
By appropriate assignments the defendants urge that the trial court erred in vacating and setting aside the summary judgment, either upon plaintiffs' motion or upon its own initiative. This for the reason, as they contend, that where, as here, there is no allegation of mistake, inadvertence, surprise, excusable neglect or fraud, the motion to set aside and vacate must be filed within ten days after the rendition of judgment and if not so filed the court is without jurisdiction to grant relief thereon, or to vacate the judgment upon its own initiative. Defendants further contend that the [70 Ariz. 247] plaintiffs' sole remedy, at the time they filed their motion to vacate the summary judgment, was by an appeal to this court from the judgment rendered against them.
On the other hand the plaintiffs seek to uphold the validity of the order setting aside the summary judgment by asserting that their motion to vacate the judgment theretofore entered was not predicated upon Sec. 21-1308, A.C.A. 1939, which in so far as pertinent reads: "* * * Motions * * * to set aside a judgment, shall be made within ten  days after the rendition of judgment, * * *" but rather that it came under the "saving clause" of Sec. 21-1502, A.C.A. 1939, reading: "* * * This rule (relieving a party within a period not exceeding six months from a judgment taken against him by mistake, inadvertence, surprise or excusable neglect. Rule 60(b)) does not ...