Borg-Warner Acceptance Corp. v. Globe Electric, Inc.

510 P.2d 1052, 20 Ariz. App. 147, 1973 Ariz. App. LEXIS 652

• Court: Court of Appeals of Arizona
• Decided: June 20, 1973
• Docket: No. 2 CA-CIV 1327
• Status: Published

Opinion

KRUCKER, Judge.

This is an appeal from an order setting aside the entry of a default. Appellant was the plaintiff below.

The complaint was filed June 28, 1972. The summons and complaint were duly served on the corporate defendant on June 29, 1972, and on the individual defendants July 5, 1972. No answer or response was filed and the affidavit of default and the default were entered on July 28, 1972. No default judgment was taken by plaintiff.

The sole question raised by the appellant is whether or not there was sufficient showing of excusable neglect to justify the court’s setting aside the entry of default.

However, appellees raise the question of our jurisdiction to consider this appeal on the grounds that the order complained of is not appealable. No judgment has been entered and under the provisions of A.R.S. § 12-2101, as amended, an order setting aside the entry of default is not appealable. This court reached that conclusion in Bolon v. Pennington, 3 Ariz.App. 433, 415 P.2d 148 (1966); see also, Overson v. Martin, 90 Ariz. 151, 367 P.2d 203 (1961). In Bateman v. McDonald, 94 Ariz. 327, 385 P.2d 208 (1963), Justice Lockwood comments on the Overson case and stated that it dealt only with an order setting aside an entry of default, no judgment having been entered. In the appeal before us, we are not dealing with an order setting aside a default judgment but only with an order setting aside the entry of default.

Appeal dismissed.

HATHAWAY, C. J., and HOWARD, J., concur.