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Rogers v. Tapo

Supreme Court of Arizona

April 23, 1951

ROGERS
v.
TAPO

Order affirmed.

Phil J. Munch, of Phoenix, for appellant.

Leonard S. Sharman, of Phoenix, for appellee.

Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concur.

OPINION

Udall, Chief Justice.

Page 523

[72 Ariz. 54] The basic issue for determination on this appeal is whether the trial court properly granted a motion to set aside a default judgment theretofore entered against defendant-appellee Nick Tapo.

The procedural snarl which we are called upon to unravel in order to answer this question arose in the following manner: Plaintiff-appellant Eva Rogers purportedly suffered serious personal injuries when a neon sign fell on her while a business visitor in the restaurant of defendant Tapo. The sign had been originally furnished and installed in the restaurant by Arden Farms Co., an Arizona corporation, a co-defendant. Plaintiff filed her complaint for relief against these two defendants jointly, alleging negligence on their part and praying for $ 50,000 in damages. Personal service was had on each of the

Page 524

parties. The corporate defendant through its counsel timely answered denying liability, and the record before us does not disclose whether the case against Arden Farms Co. was ever brought to trial. In any event it is not a party to this appeal.

Defendant Tapo filed no answer within the twenty days allowed under section 21-428, A.C.A.1939, Rules Civ.Proc. Rule 12(a). On the nineteenth day after the complaint had been filed, defendant's counsel filed a motion for security for costs under section 21-601, A.C.A.1939, and paid the statutory appearance fee, section 34-110, A.C.A. [72 Ariz. 55] 1939. There is a sharp dispute between counsel as to whether a copy of this latter motion was served on plaintiff's attorney.

On the twenty-first day after service of the summons and complaint, plaintiff, upon affidavit of counsel, had the clerk of court enter a default against defendant Tapo, under section 21-1205, A.C.A.1939, Rules Civ.Proc. Rule 55(a). Four days later, when the motion for security for costs was undoubtedly a part of the court file, plaintiff, without notice to defendant, applied ex parte to the court for judgment by default, section 21-1206, A.C.A.1939, Rules Civ.Proc. Rule 55(b). The court, after hearing evidence as to the amount of damages, ordered judgment by default to be entered against defendant Tapo in the sum of $ 25,000.

The following day plaintiff caused a writ of execution to be issued and the sheriff levied upon all of the real property owned by defendant in Maricopa county. Thereafter (within two hours), defendant filed an affidavit and motion to set aside the entry of default and default judgment. The next day ...


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