Allan v. Allan
| Decision Date | 16 December 1919 |
| Docket Number | Civil 1750 |
| Citation | 21 Ariz. 70,185 P. 539 |
| Parties | W. M. ALLAN, Appellant, v. ELIZA E. ALLAN, Appellee |
| Court | Arizona Supreme Court |
APPEAL from an order of the Superior Court of the County of Navajo. J. E. Crosby, Judge. Order appealed from vacated and cause remanded with instructions to strike same from record.
Mr. C H. Jordan and Mr. W. H. Burbage, for Appellant.
Mr Thorwald Larson, for Appellee.
The appellant, as plaintiff, commenced an action for divorce against his wife, the appellee, upon the grounds of desertion. The wife duly answered, denying the material allegations of fact, and moved for an order for alimony attorney's fees, and costs pending the litigation.
On August 12, 1918, the said motion was heard and denied. Therefore the plaintiff urged an immediate trial on the main case, and the defendant objected. The minutes of the court thereupon recite as follows:
"
On the thirteenth day of September, 1918, the defendant filed an affidavit for change of judge, under subdivision 4, paragraph 500, Civil Code of Arizona of 1913, alleging on information and belief the bias or prejudice of the trial judge, Sidney Sapp. On the fourteenth day of September, 1918, the defendant did not appear in person or by counsel for trial. The court, on its own motion, examined the affidavit of prejudice on file in the case, and disallowed the application of defendant for a change of judge, and proceeded to hear and consider the case on the merits. Judgment for plaintiff was duly rendered thereon.
On February 7, 1919, the defendant filed a motion to vacate and set aside the said decree upon the grounds that the trial judge, Sidney Sapp, acted without authority of law for the reason the said judge "had been disqualified, being then and there disqualified as to any act or thing in said cause, except to name another judge to try the issues in said cause . . . . "
On the fourteenth day of March, 1919, the motion was heard before J. E. Crosby, judge of the superior court of Navajo county, the successor to Judge Sidney Sapp, and such hearing resulted in an order granting the motion and setting aside the decree for the reason Judge Sapp was without jurisdiction to render or enter said judgment because the affidavit of prejudice disqualified him from the performance of any acts in the cause after it was filed.
From such order made after judgment rendered, setting aside a decree of divorce in plaintiff's favor, he has appealed.
The validity of the order vacating and setting aside the divorce decree is the sole matter of inquiry. This motion was filed on February 7, 1919, praying that the decree rendered on the fourteenth day of September, 1918, be set aside.
The statute, paragraph 590, Civil Code of Arizona of 1913, requires that the motion to set aside a judgment or decree shall be filed within ten days after the judgment sought to be vacated was rendered. The court retained no authority over the judgment, so that the judgment could be set aside on motion, at the time the motion was filed. The order setting aside the divorce decree rendered on September 14, 1918, was clearly without authority for that reason.
The refusal of Judge Sapp to grant a change of judge upon the filing of the affidavit of prejudice was in accordance with the decision in Smith v. King of Arizona Min. Co., 9 Ariz. 228, 80 P. 357. At the time defendant filed her application and affidavit, the trial of the cause had commenced and progressed to the date fixed by agreement of parties for the submission of the cause. The defendant did not act with diligence sufficient to require the trial court to take cognizance of her application. The application came too late to affect that trial. After the trial has commenced, fairness and justice require that it proceed orderly to a close without interruption, if possible. The change of judge in the midst of the trial is to be avoided, if possible. For the preservation of fairness and justice so far as obtainable by orderly and regular procedure, the parties should not interrupt the trial by an attempt to change judge whenever a judge has ruled adversely to them. In this case the defendant agreed in open court, in effect, that the testimony taken should be considered by the judge presiding and that either party could take testimony of other witnesses at any time up to September 14, 1918, and the cause on that date would stand submitted, to be considered by the presiding judge.
The defendant ignored this agreement, filed her application for change of judge on September 13, 1918; did not attend the court in person or by her attorney on the fourteenth day of September, nor on any subsequent date, and present her application. In the circumstances shown by this record, the trial judge was right in treating the application for change of judge as coming too late. The court was not required to hunt out voluntarily the motion and grant the application in the midst of a trial and in the absence of the applicant. He was justified in treating the absence of the defendant's counsel as an abandonment of the motion. If the applicant did not think enough of her motion to urge it, the...
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State v. Neil
...152 P. at 166 The timeliness of the filing of the affidavit has been considered several times by this court. In the case of Allan v. Allan, 21 Ariz. 70, 185 P. 539, it was held the affidavit was not timely where the trial judge had taken depositions in a prior hearing to be used at the tria......
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State v. Neil
...right of peremptory challenge may be lost '* * * by conduct implying a waiver * * *.' 17 Ariz. at 310, 152 P. at 166. In Allan v. Allan, 21 Ariz. 70, 185 P. 539 (1919), it was held to be '* * * too late * * *' to disqualify a judge after '* * * the trial of the cause had commenced * * *.' 2......
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Leeker v. Leeker
... ... filed within ten days after the rendition of judgment ... Paragraph 590, Civ. Code; Allan v. Allan, ... 21 Ariz. 70, 185 P. 539; Red Rover Copper Co. v ... Hillis, 21 Ariz. 87, 185 P. 641; Peer v ... O'Brien, 21 Ariz. 106, 185 P. 644; ... ...
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Conkling v. Crosby
...from which bias and prejudice is conclusively presumed in such case." We adhere to the statement of the law as heretofore enunciated in the Allan case. It may be noted here, however, "while it is well settled by the common law that no judge ought to act where, from interest or from any othe......