Emblen v. Southern Adjustment Bureau, Inc.

403 P.2d 294, 1 Ariz. App. 359
CourtCourt of Appeals of Arizona
DecidedJune 21, 1965
DocketNo. 1 CA-CIV 55
StatusPublished

This text of 403 P.2d 294 (Emblen v. Southern Adjustment Bureau, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emblen v. Southern Adjustment Bureau, Inc., 403 P.2d 294, 1 Ariz. App. 359 (Ark. Ct. App. 1965).

Opinion

DONOFRIO, Judge.

Appellee Southern Adjustment Bureau, Inc., brought suit in the Superior Court of Coconino County against appellants Herbert V. Emblen and Edna F. Emblen, upon a judgment rendered in California.

The defendants, appellants herein, answered that the alleged foreign judgment was void as it purported to be a summary judgment based upon motion and affidavit, notice of which was never received by defendants or their attorney of record. Defendants also entered a general denial. The cause was tried before the court, and the court rendered judgment in favor of the plaintiff, appellee. From the judgment and the order denying defendants’ motion for a new trial defendants appeal.

[360]*360On-January 7, 1959, Mesa Park Improvement Company brought an action in California in the San Diego Superior Court against appellants and others through their attorneys Torrance and Wansley of San Diego.

On December 7, 1959, the defendants through their attorney, John M. Sherman, made an appearance in the California cause and filed an answer on which his address was placed. The answer bore the following:

“John M. Sherman
Attorney at Law
Suite 212 California Bank Building
Pasadena, California
SYcamore 2-1125
RYan 1-7582
Attorneys for Defendants Herbert V. Emblen and Edna F. Emblen” (Emphasis added)

The last page of said answer contained a certificate signed by Martha Sherman as required by California law, that she served the within answer on plaintiff by mailing true copies to Torrance and Wansley, Attorneys at Law, and to Southern Adjustment Bureau, Inc.

Plaintiff in the instant cause introduced in evidence through Mr. Roy M. Cleator, an attorney representing the plaintiff in the California action, a copy of the answer served upon him. This answer is a carbon copy and identical in every respect including the erasures to the one filed in the Clerk’s office, except that it bore the following:

“John H. Sherman
Attorney at Law
Suite 212 Union National Bank Building
Pasadena 1, California
SYcamore 2-1125
RYan 1-7582
Attorneys for Defendants Herbert V. Emblen and Edna F. Emblen” (Emphasis added)

The only difference in the two is that in one ,the address is “Suite 212 California Bank Building”, and in the other it is “Suite 212 Union National Bank Building”. The evidence discloses that the Union National Bank Building was changed to California Bank Building around August, 1955.

On June 17, 1961, Plaintiff Mesa Park Improvement Company filed the notice of Motion for Summary Judgment (which is California procedure) as to the Emblens, a copy of which together with the accompanying Affidavit was mailed to John M. Sherman, 212 Union National Bank Building. Pasadena 1, California. This was Mr. Sherman’s address as shown on the served copy of Emblens’ answer. Mr. Sherman testified by deposition that he never received this Notice of Motion and Affidavit so sent. The evidence is silent as to whether any other person in the office knew of the notice.

Appellee brought the instant suit as assignee of the Summary Judgment granted in California, which was based on the foregoing notice of motion. At the trial appellee offered in evidence the assignment which was received over appellants’ objection.

[361]*361There are two questions before us. The validity of the foreign judgment and whether the assignment (Exhibit B) which makes plaintiff the real party in interest was sufficiently proven.

Defendants contend the assignment of judgment was improperly admitted in evidence in that it did not bear the corporate seal of the Mesa Park Improvement Company. That without this seal it devolved upon plaintiff to show that the officer or agent of the corporation had authority to execute it. That plaintiff failed in this regard in that testimony offered by plaintiff was hearsay.

No objection was made to the authenticity of the assignment. In viewing the exhibit we find there is a clearly discernible seal of the Mesa Park Improvement Company. We have carefully examined the impression made by the seal on the paper and are able to read the words: “Mesa Park Improvement Company” on the outer circle, and the word “Arizona” on one side of the inner circle with the word “Incorporated” on the other side and the date “1957” in the center of the seal. Apparently counsel in the haste of the trial completely overlooked the seal which we admit is rather faint, but nevertheless discernible. The seal was impressed over the signatures of Delta M. Brant, President of Mesa Park Improvement Company, and Jeanne W. Bradford, Secretary.

In First National Bank of Clifton v. Clifton Armory Company, 14 Ariz. 360, at page 364, 128 P. 810, at page 811 (1912) our Supreme Court of the Arizona Reports quoting with approval from a text said:

“Mr. Thompson in his work on Corporations, vol. 2, § 1928, says: ‘A general rule may he stated to the effect that, when an instrument is produced with the impression of the seal of the corporation, it is prima facie the act of the corporation, and no evidence is necessary to show by whom it was affixed, or that any steps were taken to confer authority on the officer or agent who affixed it, or that any steps had been taken by the corporation to authorize the execution of the instrument.’ ”

Inasmuch as the validity of an assignment of judgment is determined by the law of the state where the judgment is recovered (Cook v. Casualty Ass’n of America, 246 Mich. 278, 224 N.W. 341) we have searched the authorities in California and find them to the same effect.

California Jurisprudence discusses the effect of a corporate seal in 12 Cal.Jur.2d, Corporations § 69, p. 656, as follows:

“An instrument purporting to be executed by a corporation, foreign or domestic, and bearing a seal that purports to be that of the corporation is prima facie evidence that the instrument is the act of the corporation, and it was duly executed and signed by authorized officers or agents, that the seal is the duly adopted seal of the corporation, and that it was affixed by duly authorized person. The seal must show the name of the corporation and the state and date of incorporation. It may he engraved, lithographed, printed, stamped, impressed upon, or affixed to the instrument. An instrument bearing the corporate seal is not only prima facie evidence of the matters mentioned ; it is also admissible in evidence without further proof of execution.”

Cases to the same effect are Heberling v. Day, 59 Cal.App. 13, 209 P. 908, 913 (1922) ; Fickeisen v. Peebler, 98 Cal.App.2d 320, 219 P.2d 864 (1950).

The assignment bearing the corporate seal and signatures of the president and secretary is prima facie evidence of its execution. We see no merit to defendants’ contention.

We next consider the question of the validity of the foreign judgment.

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Bluebook (online)
403 P.2d 294, 1 Ariz. App. 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emblen-v-southern-adjustment-bureau-inc-arizctapp-1965.