Lewis v. Cunningham

Citations

• 10 Ariz. 158
• 85 P. 244
• 1906 Ariz. LEXIS 114

Syllabus

<p>1. Process — Service of Summons — Upon Sheriff — Who Mat Serve— Rev. Stats. Ariz. 1901, Pars. 1101, 1319, 1327, Construed.— While the language of paragraph 1101, supra, providing that where the sheriff is a party to an action or proceeding, process may be executed by the coroner or constable of the county, or by the United States marshal, or a deputy, or by a person appointed by the court, and paragraph 1319, supra, providing that “When it appears from the complaint that the sheriff is a party to the suit, or is interested therein, the summons shall be served by any constable of his county,” is mandatory, the requirement to be obeyed relates to the duty of the coroner or constable and not to the method, so that the method pointed out in paragraphs 1101 and 1319, supra, may be followed, or “The summons may be served by any disinterested person competent to make oath of the fact,” as provided by paragraph 1327, supra.</p> <p>2. Appeal and Error — Default — Setting Aside — Discretion — Review. — A motion to set aside a default is addressed to the sound discretion of the trial court, and its action is not to be disturbed on appeal unless it appears that such discretion has been abused.</p> <p>3. Judgment — Default—Setting Aside — Denial—Evidence. — Where the time for a sheriff to answer expired September 21st and default was entered September 30th, and at the call of the calendar on the first Monday in December he gave notice of a motion to set aside the default, but failed to file the same, and the case was tried and judgment rendered on December 22d, and after judgment a motion to set it aside was made, upon affidavits stating that at the time of the service of summons defendant was extremely busy with the criminal business of the county and the cares of his office, and thereafter was constantly away from the office and utterly forgot and overlooked the necessity of filing his answer until after the default had been entered, the facts did not make a sufficient show