Overson v. Martin

Defendants (appellees in the Superior Court) filed a motion to vacate an entry of default against them, setting forth grounds stated in Overson v. Martin, 90 Ariz. 9, 363 P.2d 604, (1961). From an order granting this motion, appellants brought the appeal decided above. Opinion reversing the order of the superior court in the cited case was filed July 11, 1961. No motion for rehearing was filed within the time required by Supreme Court Rule 9(a). On August 3, 1961, the mandate to the Superior Court of Maricopa County was issued and entered on the record of the court. On August 4, 1961, appellees filed in this Court a "petition" praying that the mandate be withheld, that it be quashed and that the appeal be dismissed. The basis for the petition was that there is no appeal from an order vacating entry of default and therefore the Supreme Court lacked jurisdiction. The mandate was picked up by messenger and delivered to the clerk of the superior court on August 7, 1961. On August 25, 1961, a petition to recall mandate from the superior court was filed. The appellant cites a number of Arizona cases with the contention that this Court in the past has accepted such appeals. In none of these cases was the instant question raised or proper, the appeals being from judgments on the merits following the vacation of the default, from orders denying vacation of default judgments or other matters. Three cases are cited wherein this Court acted without comment upon appeals from orders setting aside default judgments, but the question of appealability of these orders was not raised in these cases. Appellants contend the appealability of an order vacating a default judgment and an order vacating a default before judgment rests upon the same basis.