STATE of Arizona ex rel. Robert MORRISON, Attorney General, Appellant,
C. A. McCARRELL, a single man, Spencer Balcomb and Donna Balcomb, his wife, Appellees.
[80 Ariz. 245] Robert Morrison, Atty. Gen., R. G. Langmade, Asst. Atty. Gen., for appellant.
Earl Platt, St. Johns, for appellees.
This is an appeal by the state of Arizona from a judgment dismissing with prejudice plaintiff's complaint in which it was sought to set aside a default judgment theretofore entered against the state, arising out of an action to quiet title to certain land located at Sanders in Apache County adjacent to the Santa Fe Railroad and U. S. Highway 66 running through that town. The facts will be hereinafter more fully set out.
The details as to the quiet-title action, being Cause No. 3057 (our Docket No. 6072 on appeal), 80 Ariz. 240, 295 P.2d 1086, are fully set forth in the companion decision handed down this date.
After the quiet-title action (our No. 6072, supra,) had been appealed to this court, the instant equitable action was filed in the superior court asking that said default judgment be set aside upon the ground of extrinsic fraud in its procurement. The defendants moved to dismiss the complaint upon the ground (1) that it failed to state a claim upon which relief could be granted; (2) that the court lacked jurisdiction over the person of the defendants and over the subject matter of said action in that there was another action pending at the time, being cause No. 3057, supra, between the same parties and relating to the same subject matter; and (3) that this action amounts to a collateral attack upon that judgment.
The defendants also filed a plea in bar or abatement based upon grounds Nos. 2 and 3 set forth in the motion to dismiss. The court granted both motions upon the ground that the issue in this case and in Cause No. 3057, supra, were '* * * almost identical and the allegations of intrinsic fraud do not meet the requirements of our statute. * * *.' and thereupon ordered the complaint dismissed and the cause abated. This appeal is from that judgment.
Appellant assigns as error the dismissal of the complaint upon the ground stated by the court that parties and issues involved are the same as in Cause No. 3057 and that 'the allegations of intrinsic fraud do and meet the requirements of our statute,' and asserts that its complaint was based upon extrinsic fraud in the procurement of the default judgment here involved.
Under the circumstances we must look to the allegations of the complaint to ascertain if they are sufficient to charge extrinsic fraud. For the purpose of determining its sufficiency[80 Ariz. 246] or lack of sufficiency we must treat the allegations therein as true.
The complaint alleges that the attorney general was at all the times here involved the legal advisor of the state highway department and that the land involved in this litigation had been occupied by the state highway department within a fenced enclosure since 1935; that it was first occupied under a lease from defendant Balcomb for approximately 10 years; that in 1944 the property was conveyed to the state by warranty deed and that the highway department has at all tines since then continuously occupied said property openly and notoriously;
has at all times since then continuously quiet-title action the state had made permanent improvements thereon of approximately $10,000 in value.
It alleges that the complaint in the quiettitle action contained the allegation that said land was occupied by the highway department; that the attorney for defendants had, in April, 1949, more than five years after the state had occupied the land as owner, sought to have the description of the land conveyed to the state corrected so (as they claimed) it would conform with the description of the land occupied by the state and upon which the improvements were made.
It further alleges that after investigation through the assistant attorney general the state highway department declined to accede to the request upon his advice that the description in the deed correctly described the land used by the highway department as its camp; that between 1949 and 1954 at various times defendants' attorney sought to induce the state to reconvey a part of the land to them and in 1953 defendants' attorney requested a correction of the description and again upon advice of an assistant attorney general specially assigned to it, the highway commission refused to reconvey any portion of said land and entered upon its minutes its decision to refuse to reconvey any of the land it had occupied for years upon the ground that it had title thereto.
The complaint further alleged that said assistant attorney general began to prepare pare to answer any action that might be filed against the state and to procure evidence to defend said action by procuring a statement from the grantor in the deed to the state that the property occupied by the highway department was correctly described in the deed and was the identical property he intended to convey to it.
It is further alleged that the attorney general upon receipt of service of process upon the state in the quiet-title action referred the matter to the commissioner of the state land department and upon being informed by that office that the records of his department 'did not show this to be state land' the attorney general wrote a letter to the county attorney of Apache County that the state land department had [80 Ariz. 247] advised that there was no state land involved in the quiet-title action and requested the county attorney to appear and answer for the state when he answered ...