MARSH et al.
Rehearing Denied November 20, 1951.
Norman F. Wykoff, Glendale, for appellants.
Lewkowitz & Wein and B. R. Lewkowitz, Phoenix, for appellee.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
[73 Ariz. 8] The facts out of which this appeal arose are as follows: Appellants, Jack Marsh and Bill Rouse, as copartners and building contractors, filed a complaint against the defendant-appellee Riskas, alleging that there was a certain sum due them for work
performed on behalf of the appellee. The complaint was filed on April 24, 1950. Summons was issued and returned by the sheriff showing personal service on defendant in Maricopa County on this same date. No answer was filed by defendant within the period prescribed by law. Application was made on May 27, 1950 in accordance with Rule 55(a), section 21-1205, A.C.A.1939, for an entry of default and such default was entered by the clerk on the same day.
Appellee filed his unverified answer and counterclaim with the clerk on May 31, 1950. On June 1, 1950 a default judgment was entered against the defendant-appellee, but his pleadings were not with the clerk's file in the courtroom at that time.
[73 Ariz. 9] On June 2, 1950, appellee by his attorneys, filed a "Motion, Notice and Petition to Vacate Judgment" and alleged only the following in their petition as reason for setting aside the judgment, that, "Through defendant's attorney's mistake, inadvertence and excusable neglect, defendant's attorney failed to file an answer within the time allowed". At the hearing on this motion on June 8, 1950, the trial court entered an order setting aside the default judgment entered on June 1st.
The action of the trial court in setting aside the default judgment forms the basis of this appeal. Appellants assign two errors of law for consideration of this court. The first relates to the petition in support of appellee's motion to vacate the judgment, in that it did not set forth any matters constituting mistake, inadvertence, surprise, or excusable neglect, but merely stated legal conclusions. The second error assigned is that the motion to vacate the judgment was ordered by the trial court notwithstanding the fact that the motion and its supporting petition did not set forth any facts showing that appellee had a substantial or meritorious defense. Since both errors can be supported by one proposition of law they will be treated together.
Rule 55(a), section 21-1205, A.C.A.1939, provides: "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by ...