Opinion
No. 1 CA-CIV 124.
May 9, 1966.
Suit in libel. From an order of the Superior Court of Maricopa County, Cause No. 165183, Warren L. McCarthy, J., granting defendants' motion to set aside an entry of default, plaintiff appealed. The Court of Appeals, Cameron, J., held that it had no jurisdiction to consider appeal from an order granting a motion to set aside an entry of default.
Appeal dismissed.
Burns Ferrin, by S. Paul Ferrin, Phoenix, for appellant.
Johnson Shaw, by Marvin Johnson, Phoenix, for appellees.
This is an appeal from an order granting defendant's motion to set aside a default.
Plaintiff filed a complaint in libel on 13 August, 1964. Copies of the summons and complaint were personally served upon the defendant, Joseph C. Haldiman, Jr., individually and as President of the Acme Real Estate and Development, Inc., on the same day. Affidavit on default and entry of default was filed 22 September, 1964, and motion to set aside default was filed by the defendants 15 October, 1964. The minute entry of 6 November, 1964, reads as follows:
"This matter having been submitted for ruling without argument, and the court being fully advised in the premises,
"IT IS ORDERED granting defendant's motion to set aside default."
Although the parties have not questioned our jurisdiction, we must, nevertheless, pass upon our jurisdiction to hear this appeal. Stevens v. Mehagian's Home Furnishings, Inc., 90 Ariz. 42, 365 P.2d 208 (1961), Bloch v. Bentfield, 1 Ariz. App. 412, 403 P.2d 559 (1965), Christian v. Cotten, 1 Ariz. App. 421, 403 P.2d 825 (1965), Ginn v. Superior Court, 1 Ariz. App. 455, 404 P.2d 721 (1965).
Generally, the power of this Court to review actions of the Superior Court is limited by 12-2101 A.R.S., and 12-120.21 A.R.S. State v. Mileham, 1 Ariz. App. 67, 399 P.2d 688 (1965). In the instant case, neither this Court nor the Supreme Court has jurisdiction to consider an appeal from an order granting or denying a motion to set aside an entry of default. Our Supreme Court has stated:
"After a motion to set aside entry of default had been denied it remains for the trial court to conduct hearings, when appropriate, to determine the amount of damages or to establish the truth of any averment, and to enter judgment upon the default. Ariz.R.Civ.Proc. 55(b), 16 A.R.S. An order denying a motion to set aside default entered by the clerk of the superior court is in no sense a final judgment. Nor does such order determine the action so as to prevent entry of judgment upon the default. Therefore, the order is not appealable." Rueda v. Galvez, 94 Ariz. 131, 132, 133, 382 P.2d 239, 240 (1963).
And:
"If the question of whether the order setting aside the entry of default had been raised in the original opinion, this court would have decided it. If it is not an appealable order, the inadvertent acceptance of this appeal does not bar the court from refusing subsequent appeals in other cases involving this situation." Overson v. Martin, 90 Ariz. 151, 153, 367 P.2d 203, 205 (1961).
The appeal is dismissed.
STEVENS, C.J., and DONOFRIO, J., concur.