100 P. 952 | Ariz. | 1909
Benton brought suit in the court below against the Arizona Mining and Trading Company on a promissory note for $18,242.05 alleged to have been executed to him by the company, and to be due and owing from it. The summons was served on C. A. Overlook, the president of the defendant company, on May 12, 1908, and on the same day a pleading entitled an answer, verified by the said Overlook, as president of the company, was filed on its behalf, reading as follows, omitting the title of the court and cause: “Comes now the defendant, the Arizona Mining and Trading Company, a corporation, and, answering the complaint filed herein, admits as substantially true the material allegations thereof, and alleges that this defendant is unable at this time to pay the indebtedness set forth in said complaint, or any part thereof. "Wherefore this defendant prays judgment of this court in accordance with law.' Arizona Mining and Trading Company. C. A. Overlook, President.” On the same day the case was brought on for trial in the district court, and a judgment rendered in favor of the plaintiff for the amount of the note and interest, the said judgment containing the following recital: * ‘ Evidence is now introduced on behalf of the plaintiff, and it further appearing from the verified pleadings on file herein, as well as from said evidence, that the allegations of the complaint are true and proven, and the matter having been submitted to the court for finding and decision, and the court being fully advised in and concerning the premises, it is therefore ordered,” and so forth. On May 21st the defendant company, through its attorneys, filed a motion to vacate and set aside the judgment so entered, and for leave to file a proposed answer attached to the motion. The motion was based on the ground that the judgment was obtained by fraud and collusion, and that it was obtained upon an answer purporting to have been made on behalf of the defendant by Overlook, its president, admitting the truth of the allegations of the complaint, which answer was made collusively and fraudulently by Overlook at the instance and request of plaintiff
We have deemed it desirable to set forth thus fully the record in the case as the situation is somewhat involved. The reply to the defendant’s proposed answer would seem to have
In the case before us the defendant presented to the trial court by its affidavits and proposed answer facts sufficient to show prima facie a valid defense to the action. Without inquiring into the truth or falsity of such defense, it was then the duty of the trial court to ascertain whether grounds ex
We think by reason of these facts, and though there be no fraud to be imputed to Overlock or the plaintiff’s attorneys, the case was one in which the trial court should have sustained the motion to set aside the judgment, and have allowed the defendant company to interpose its answer. The order of the district court denying the motion is therefore reversed, and the case is remanded to the district court for further proceedings in conformity with this opinion.