Rehearing Denied Dec. 22, 1953.
[76 Ariz. 329] Darnell, Robertson, Holesapple & Spaid, Tucson, Richard Fish and Richard C. Briney, Tucson, of counsel, for appellants.
Hall, Catlin & Molloy, Tucson, for appellees.
STANFORD, Chief Justice.
This is an appeal from an order granting plaintiffs' motion to vacate a judgment theretofore entered in favor of defendant. To understand the difficult and interesting [76 Ariz. 330] legal questions presented by the appeal, we shall set forth the facts in some detail.
Charles Batt and seven of his minor children were passengers in an automobile owned and being driven by one Floyd Cassidy, and on September 3, 1950, near Cienega Wash in Pima County, on the Tucson-Benson Highway, the Cassidy car collided with a car being driven by one C. M. Hightower. As the result of this collision, four of the Batt children were killed, and the father and the other three children were grievously injured.
On October 10, 1950, Charles Batt as plaintiff, individually, and as next of friend to his three surviving children, brought an action in the Pima County Superior Court against defendant, C. M. Hightower, alleging his negligence as the proximate cause of the injuries and deaths.
Personal service of the complaint and summons was had upon the defendant Hightower in Pima County. On October 14, 1950, Mr. Hightower, before answering, died at St. Mary's Hospital in Tucson, as a result of the injuries received by him in the collision. Decedent Hightower and his wife, Nellie B. Hightower, were at all times demiciliaries of the state of California, and owned property therein.
The Los Angeles Superior Court appointed the widow, Nellie B. Hightower, executrix of the last will and testament of her deceased husband, and she qualified as such. No steps were taken to have ancillary probate proceedings initiated in Arizona, but on November 28, 1950, by written agreement of counsel representing all parties to the pending action, it was stipulated that 'Nellie B. Hightower, as Executrix under the Last Will and Testament of Clark Matthews Hightower, the above named defendant, now deceased, be and she is hereby substituted as party defendant in the above entitled matter.' On the same date the Pima County Superior Court entered its order of substitution. Later that day an answer to the merits was filed by the executrix.
Trial was had before a jury on the issues presented by the pleadings, and on September 22, 1951, the jury returned a unanimous verdict in favor of defendant Nellie B. Hightower, as executrix under her husband's last will and testament, and against all of the plaintiffs. There is no contention that errors were committed at trial. Upon motion of counsel for defendant, judgment was entered on the verdict the same day rendered.
On October 24, 1951, plaintiffs filed a motion to vacate the said judgment upon the grounds:
'1. That the Court lacked jurisdiction to enter the judgment of September 22, 1951.
'2. That the Court lacked jurisdiction over the subject matter insofar as said judgment is concerned.
'3. That the Court lacked jurisdiction over Nellie B. Hightower in that [76 Ariz. 331] * * * (she) had no right, power or authority to represent the estate of Clark M. Hightower (in Arizona), and as a result the said estate was not a party to the action as far as said judgment is concerned.'
This was the first time that plaintiffs had raised any objection whatever to the court's jurisdiction to hear and determine the case or to enter said judgment, or as to the power or capacity of Nellie B. Hightower to appear and defend said action as executrix. In their brief they concede that four days before trial (when Mrs. Hightower's deposition was taken in California) they knew her appointment as executrix stemmed from an order of the California court and that no estate proceedings were pending in Arizona. The trial court, on December 1, 1951, granted plaintiffs' motion to vacate the judgment, 'for the reason that the court is without jurisdiction to enter said judgment.'
It further appears from the record that counsel for defendant Nellie B. Hightower, executrix, in both oral argument and in the memoranda opposing the motion to set aside the judgment, urged that if the court believed there was a defect of party-defendant it should grant an extension of time within which Nellie B. Hightower might qualify as executrix in ancillary proceedings to be initiated immediately in Arizona, in order that she might be substituted in such capacity as defendant in said action. Counsel urged that if such substitution were made, under the rules of civil procedure and statutes and laws of Arizona, it would have the legal effect of a trial amendment relating back to the filing of defendant's answer. On the other hand, plaintiffs urged upon the trial court that the problem of a defect of party defendant was not involved, and accordingly objected to the requested delay, arguing that the proposed ...