Enrique GONZALES and Maria Gonzales, husband and wife, Appellants,
William WHITNEY, John Vickers and H & M Builders, Inc., Appellees.
Rehearing Denied March 6, 1962.
[90 Ariz. 325] William Rogers, Jr., Phoenix, for appellants.
Harry A. Stewart, Jr., and William S. Andrews, Phoenix, for appellee John Vickers.
F. Britton Burns, Phoenix, for appellee H & M Builders, Inc.
[90 Ariz. 326] CHARLES P. ELMER, Superior Court Judge.
This is an appeal by the plaintiffs below from the order of the trial court, granting the motion of the garnishee-defendant, John Vickers, to set aside default and judgment by default entered against him herein and to set aside the further judgment entered
thereafter against garnishee-defendant H & M Builders, Inc.
In the early summer of 1956, appellants were granted a default judgment against one William Whitney for a sum in excess of $2,700.00. Thereafter, on August 23, 1956, they secured the issuance of a writ of garnishment against appellee John Vickers. In order to effect service of this writ on Vickers, the appellants had the clerk appoint one Lester Swanlund pursuant to Rule 4(c) of the Rules of Civil Procedure, 16 A.R.S. Mr. Swanlund thereafter made an affidavit of what he had done with the writ, averring that 'he personally served the same on:
'John Vickers, Contractor, by leaving a copy with Ju[a]nita Vickers, in person, his wife and part owner, during regular office hours at 2411 West Belmont, Phoenix, Arizona, on August 23, 1956 at 1:50 p. m.'
Vickers failed to answer the writ and his default was entered on September 20, 1956. On the same day, judgment by default was entered against him. A copy of this judgment was mailed to Mr. Vickers on or about September 24, 1956, and a few days thereafter the attorney for appellants received a telephone call from a woman who represented herself as being Mrs. Vickers, in which she admitted that he had received the copy of the judgment. Nothing further was done to effect collection of judgment either against the principal defendant or the defendant-garnishee until on or about April 5, 1957, when appellants secured the issuance of a writ of garnishment directed to the appellee H & M Builders, Inc., as well as some other garnishees who are not involved in this appeal. H & M Builders, Inc. filed an answer to the writ served upon it, in which it acknowledged it was indebted to garnishee-defendant Vickers in a sum in excess of $3,000.00. Thereafter, on May 2, 1957, judgment was entered in favor of appellants against garnishee-defendant H & M Builders, Inc., based upon the answer to the Writ of Garnishment.
On May 8, 1957, appellee Vickers filed a motion to set aside the judgment entered on September 20, 1956, upon the grounds (1) that he was not properly served with the writ of garnishment, and (2) that he failed to answer through mistake, inadvertence, surprise and fraud. This motion is supported by the affidavit of Mr. Arthur Van Haren, Jr., attorney for Mr. Vickers, in which he averred that on October 4, 1956 he discussed the matter of default judgment [90 Ariz. 327] taken against Vickers with William Rogers, Jr., the attorney for the plaintiffs; that in this conversation Mr. Rogers specifically informed Mr. Van Haren a time payment plan was being arranged between Whitney and the appellants and that appellants would not look to Mr. Vickers for the payment of the judgment against him in that he understood that the principal judgment debtor was not a creditor in any way whatsoever of Mr. Vickers. Mr. Van Haren further averred that in this conversation Mr. Rogers specifically stipulated that he would quash the default judgment taken against Mr. Vickers in that he knew it could be set aside, and he further specifically promised that he would not levy, or attempt to levy any executions upon Mr. Vickers.
Mr. Rogers filed an affidavit in opposition to the motion in which he controverted the Van Haren affidavit, averring that he never promised or agreed that he would quash or set aside the default judgment taken against Vickers; and averring that on August 23, 1956 appellee Vickers regularly resided at 2411 W. Blemont, Phoenix, and that Juanita Vickers, a person of suitable age and discretion, also then resided at that address. Thereafter, there was filed an affidavit of John Vickers which states that the 'judgment pleading was lost through no fault of the affiant' and restates the substance of the averments of Mr. Van Haren's affidavit.
The trial court granted the motion to set aside the judgments and it is from the order granting the motion that this appeal is taken. The order does not recite the ground on which the motion was granted.
Appellants have made but on assignment of error and that is that the trial court erred in granting the motion to set aside the default and the judgment by default after more than six months had elapsed since
the entry of the judgment and garnishee Vickers had been personally served with process. Under this assignment appellants advance two propositions of lawf first, that the trial court has no jurisdiction to set aside a judgment after six months from the entry thereof and, second, that in order to attack a judgment upon the ground of fraud, it must be clearly shown that the fraud complained of had been practiced in the very act of ...