Court: Court of Appeals of Arizona; May 11, 1970; Arizona; State Appellate Court
Rina Dolgin, a married woman, initiated a lawsuit for personal injuries after slipping at the Phoenix Airport Travelodge on March 27, 1969, seeking $17,500 for damages and medical expenses. A default judgment of $3,650 was awarded to Dolgin after the defendant failed to respond, and subsequent motions by the defendant to set aside the default and judgment were denied by the trial court. The defendant challenged the default judgment primarily on the grounds of allegedly improper service of process. The court noted that the record on appeal was incomplete, lacking testimonies that were presented at the trial regarding service issues. It emphasized that a party cannot rely solely on presumptions when the record is inadequate and that a default judgment should be presumed correct in such cases. The conflicting affidavits regarding service—one from the process server stating personal service and another from the resident manager claiming it was delivered by mail—did not provide sufficient evidence to overturn the service's validity.
Furthermore, the court explored whether the defendant's insurance carrier, not at fault, could seek relief and have the case heard on its merits. The court referenced prior cases establishing that equitable considerations apply in these situations, particularly emphasizing an amendment to Rule 60 (c) that allows for broader grounds for relief from judgment. Despite the case not involving an automobile insurer, the court found that similar equitable principles were applicable here, as the insurer had acted promptly upon notification of the lawsuit but was unable to defend the case. The insurer's affidavit included defenses of assumption of risk, contributory negligence, and failure to join an indispensable party, which were deemed adequate to support its motion to set aside the default judgment.
The insurer's failure to respond was justified, and a valid defense was presented, leading to the conclusion that the default judgment should be vacated to allow the case to be heard on its merits. The appellant argued that the plaintiff's husband was an indispensable party due to Rule 17(e), 1 A.R.C.P., which they claim creates a jurisdictional defect. However, it was determined that the waiver executed by the husband prior to the default judgment allowed the plaintiff to pursue the suit for the community's benefit. The husband's waiver and acceptance of his wife's actions prevent him from contesting her right to bring the suit later. Given that no prejudice to the community or the appellant was demonstrated, the plaintiff-wife was deemed the appropriate party to initiate the lawsuit without joining her spouse. The case is reversed and remanded for further proceedings consistent with this opinion. Judges HOWARD and LLOYD C. HELM concurred, with Judge HERBERT F. KRUCKER recused from the matter.
