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Arizona Securities, Inc. v. Keene

Supreme Court of Arizona

March 8, 1961

ARIZONA SECURITIES, INC., a corporation, Appellant,
v.
Dannie KEENE, aka Donnie Keene and Gerrald Keene aka Gerrold Keene, John Doe and Jane Doe, and Reliable Dry Wall Engineering Company, Inc., Appellees.

Page 222

[89 Ariz. 212] Tom Roof, Phoenix, for appellant.

John P. von Blum, Phoenix, for appellee Reliable Dry Wall Engineering Co., Inc.

JENNINGS, Justice.

This is an appeal by Arizona Securities, Inc., hereinafter called plaintiff, from an order of the trial court granting the motion of Reliable Dry Wall Engineering Company, Inc., hereinafter called garnishee, to set aside default and default judgment.

On September 13, 1956, plaintiff filed a complaint in the Maricopa County Superior Court to recover sums due on a contract executed by the defendants Keene. Service of process was secured upon defendants and default entered against them. On December 27, 1956, a writ of garnishment against garnishee was issued and a copy was served on that date at 5:50 p. m. upon Alan DeMore, manager, Reliable Dry Wall Engineering Co. The writ and affidavit of service thereof were filed December 29, 1956. No answer was made to the writ by garnishee and an affidavit on default of garnishee was filed January 11, 1957. On May 28, 1957, the court entered the default of the garnishee and entered judgment in the sum of $330.34 against the defendants Keene and against garnishee.

On January 11, 1958, execution issued against the garnishee. The sheriff levied on garnishee's property on January 17, [89 Ariz. 213] 1958, and received $349.62 in cash which represented the amount of the judgment plus $14.08 interest, and $5.20 for costs. This was paid to the plaintiff's attorney and the return on execution was filed January 20, 1958. Garnishee moved to set aside the default and the judgment on January 22, 1958, nearly eight months after the filing of the judgment, upon the grounds of mistake, inadvertence, surprise and excusable neglect, citing Rule 60(c) of the Rules of Civil Procedure, 16 A.R.S.

The court heard the motion on special argument of counsel and took the matter under advisement on February 7, 1958. On August 5, 1958, the court made its order granting garnishee's motion to set aside default and default judgment, from which order plaintiff appeals.

Plaintiff contended that the trial court erred in granting garnishee's motion, citing that the court exceeded its jurisdiction in adjudicating a motion filed by garnishee more than six months after rendition of judgment for plaintiff. Plaintiff further contended that the trial court abused its discretion, as a matter of law, in setting aside the default judgment on an insufficient showing of mistake, inadvertence, surprise, or excusable neglect by the garnishee.

Rule 60(c), 16 A.R.S., 1956, Rules of Civil Procedure, provides as follows:

Page 223

'Mistakes; inadvertence; suprise; excusable neglect. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This Rule does not limit the power of a court to entertain an action to relieve a party from a judgment, order, or proceeding, or to set aside within one year a judgment obtained against a defendant not actually personally notified.'

Rule 60(c) is the same as Section 21-1502, A.C.A.1939, which is a duplicate of Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. from whence it was taken. A Calfornia statute, in turn, served as a model for this federal rule. Ledwith v. Storkan, D.C., 2 F.R.D. 539; Wallace v. United States, D.C., 2 F.R.D. 173; United States, for Use of Kantos Bros. v. Mutual Const. Co., D.C., 3 F.R.D. 227.

In discussing this rule which is a duplicate of Section 21-1502, supra, A.C.A.1939, we held in Rawlins v. Wilson, 66 Ariz. 267, 187 P.2d 322, that it should be broadly interpreted, should be liberally construed,[89 Ariz. 214] and that each case decided under the rule must be determined on its own facts.

As this Court stated in Eldridge v. Jagger, 83 Ariz. 150, 152, 317 P.2d 942, 944:

'* * * We have repeatedly held an applicatio to open, vacate or set aside a judgment is within the sound discretion of the trial court and its action will not be disturbed by this court except for a clear abuse of discretion. Brown v. Beck, 64 Ariz. 299, 169 P.2d 855; Thomas v. Goettl Bros. Metal Products, 76 Ariz. 54, 258 P.2d 816.'

However, it must be kept in mind that when a court exceeds its jurisdiction it is without authority to apply its sound discretion on the matter in question. In State v. McCarrell,80 Ariz. 240, 243, 295 P.2d 1086, 1088, a typical proceeding wherein the motion to set aside a ...


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