188 P. 133 | Ariz. | 1920
This action was brought against the 'Willcox-Pima Overland Company, a copartnership composed of H. C. Kimball and S. B. Brown, and H. C. Kimball, to recover upon a promissory note. The summons was served upon H. C. Kimball, who, within the time allowed by the statute, filed a separate “verified” answer. Thereafter the action as to the defendant Kimball was, on motion of the plaintiff, dismissed, but a default judgment was entered against the copartnership, and also against Kimball as a member of the firm. It appears that Kimball had no notice of this action of the court. Subsequently, on his motion, the court entered an order vacating the judgment, from which order this appeal has been taken.
We are somewhat at a loss to understand upon what theory the court proceeded in rendering the default judgment. We assume, however, that it was considered that the separate answer of Kimball could not be treated as an answer by the copartnership. Granting that the court was correct in coming to this conclusion, we do not see how that fact justified the dismissal of the action as to Kimball and the entry of a judgment against him in the face of his verified answer. However this may be, we think it is clear that the order vacating the judgment was justified by the showing made on the motion. The verified petition upon which Kimball sought to have the judgment vacated, stated, among other things, that as soon as he was served with the summons in the case .he consulted a reputable attorney, whose name he gives, and explained to him the nature of the defense to the note, and engaged the attorney to prepare and file an answer in the suit; that the said attorney .pre
We have reached the conclusion that neither Kim- ' ball nor the copartnership should be made to suffer on account of an error committed by the attorney in respect to the answer. We have also concluded that a good and substantial defense upon the merits is disclosed by Kimball’s answer and the petition to vacate the default judgment. It is shown in the petition that there were pledged as collateral security for the notes sued upon in the action, other notes aggregating $6,445.06, for which no accounting has been made, and no credit given. Other credits which, ■
In view of this general rule, we are of the opinion that the order of the lower court must be, and the same is hereby, affirmed.
CUNNINGHAM, C. J., and BOSS, J., concur.