recognizing that rendition of judgment against insured creates both judgment debt in favor of injured party and debt under insurance contract between judgment debtor and insurer that can be garnished by injured party
How later courts described this case
- recognizing that rendition of judgment against insured creates both judgment debt in favor of injured party and debt under insurance contract between judgment debtor and insurer that can be garnished by injured party
- “It seems to be settled that after recovering a judgment against an insured under a liability policy, the injured third person may collect such judgment by instituting garnishment proceedings against the liability insurer.”
- “[A]fter recovering a judgment against an insured under a liability policy, the injured third person may collect such judgment by instituting garnishment proceedings against the liability insurer.”
- insurer was not deprived of due process where the insurer had the opportunity to set aside the default judgment, but failed to act promptly
Written by the judges who cited it.
The opinion
BERNSTEIN, Chief Justice
(dissenting).
In our recent decision of Carpenter v. Superior Court, 101 Ariz. 565 , 422 P.2d 129 , I dissented from the majority of the court *248 because of my belief that a reexamination by this court of the continuing validity of our holding in the case of Jenkins v. Mayflower Insurance Exchange, 93 Ariz. 287 , 380 P.2d 145 had been improperly avoided. It was my opinion then, as it is now, that the Mayflower case had been erroneously decided and that it should be overruled. Carpenter v. Superior Court, supra, 101 Ariz. p. 572, 422 P.2d 129 (dissenting opinion).
In the present cause the majority now has taken the opportunity to reconsider the Mayflower decision, and has decided it should be reaffirmed. For reasons set forth in my dissent in Carpenter, I cannot concur with the majority’s continuing support of Mayflower.
The majority has chosen to again term as “artful” those distinctions which lay at the very heart of A.R.S. Title 28, Chapter 7, Articles 3 and 4, and in this manner, to again ignore the master plan of the Financial Responsibility Law as well as obvious legislative intent. In doing so, the majority risks hypocrisy in suggesting that a change of the law as enunciated in Mayflower is a matter for the legislature rather •than the judiciary. For as I stated in Carpenter, the failure to exercise necessary judicial restraint in the face of a strictly legislative matter constituted the condemning defect in our Mayflower decision. The doctrine of judicial restraint in such matters is a constant limitation on the power of the courts and is not to be stored in legal moth balls for selective use only. I cannot agree that it would be a violation of this doctrine to now overrule a case in which the principle had been previously violated. To the contrary, it simply would be a matter of correcting a past wrong.
Further, I must disagree with the majority’s conclusion that the trial court could properly find that Financial Indemnity Company had failed to make a motion to set aside the default judgment within a “reasonable” time. The majority apparently overlooks the fact that the Mayflower decision, which permits a judicial “policy” consideration to vary the plain import of the Financial Responsibility Law, was not handed down until approximately two years after the default judgment presently in question was granted (i. e. March, 1963). Therefore, in 1961, Financial Indemnity Company had every reason to believe that its contractual policy defense constituted a complete defense in any ensuing garnishment proceeding brought against them by the plaintiff and that as a result there was no reason for Financial Indemnity Company to feel a need to set aside the default judgment. To say that our Mayflower decision was a surprise to both the members of the legal profession and the insurance companies of this state is, perhaps, to put it mildly.
It is my opinion that the Mayflower decision should be overruled and that judgment should be entered in favor of Financial Indemnity Company.