American Buyers Life Ins. Co. v. Superior Court In and For Maricopa County, 6689

• Decision Date: 24 September 1958
• Docket Number: No. 6689,6689
• Citation: 329 P.2d 1100,84 Ariz. 377
• Parties: AMERICAN BUYERS LIFE INSURANCE COMPANY, American Buyers Insurance Company, American Buyers Assurance Company, American Buyers Casualty Company, American Buyers Credit Company, ABC Loan Company, American Buyers Insurance Company of Utah, W. I. Lowry, W. A. McLeod, W. W. Trew and H. R. McLeod, Petitioners, v. SUPERIOR COURT of the State of Arizona IN AND FOR COUNTY OF MARICOPA, and the Honorable E. R. Thurman, one of the judges thereof, Respondents.
• Court: Arizona Supreme Court

Page 1100

329 P.2d 1100

84 Ariz. 377

AMERICAN BUYERS LIFE INSURANCE COMPANY, American Buyers Insurance Company, American Buyers Assurance Company, American Buyers Casualty Company, American Buyers Credit Company, ABC Loan Company, American Buyers Insurance Company of Utah, W. I. Lowry, W. A. McLeod, W. W. Trew and H. R. McLeod, Petitioners, v. SUPERIOR COURT of the State of Arizona IN AND FOR COUNTY OF MARICOPA, and the Honorable E. R. Thurman, one of the judges thereof, Respondents.

No. 6689.

Supreme Court of Arizona.

Sept. 24, 1958.

Rehearing Denied Oct. 28, 1958.

W. W. Trew and Stockton & Karam, Phoenix, for petitioners.

Sidney B. Wolfe, Phoenix, for respondents.

WINDES, Justice.

Petition for writ of prohibition against the superor court in and for the county of Maricopa and the judge thereof to prevent the recognition of an affidavit of bias and prejudice. The pertinent facts are that petitioners are defendants in a suit seeking appointment of a receiver, injunctive relief and an accounting. A temporary restraining order had been issued. By appropriate pleadings defendants attacked the validity of the restraining order and the matter had been set for hearing at 3:00 o'clock p. m. on April 1st before the Honorable Henry S. Stevens. Prior to the hearing the attorney for plaintiffs advised Judge Stevens that his clients requested that he not hear the matter. In the minute order of Judge Stevens is the following:

'At a time after the entry of the order by this court fixing the hour of 3:00 P.M. this date as the time for the hearing of any motion which may be made seeking to quash or vacate the temporary restraining order, Mr. Wolfe the attorney advised this Judge that his clients request that this Judge not hear this matter, and this Judge having examined the pleadings and preferring to honor said disqualification without the necessity of the filing of an affidavit, inquiry was made as to the possible availability of another judge of this court.'

The matter was then assigned to the Honorable Yale McFate of Division 10. After making certain orders Judge McFate announced his disqualification and the case was assigned permanently to the late Judge Baker and after his death the case was permanently assigned to respondent, the Honorable E. R. Thurman. Thereafter certain motions were argued before and decided by Judge Thurman. The minute order of Judge Thurman's reflects that he partially granted plaintiffs' motion to strike from defendants' answer and ordered the following:

'It is ordered that the motion of plaintiffs' filed June 20, 1957, for an order amending peremptory writ of mandamus issued and dated June 19 1957, at 5:30 P.M., as denied.

'It is ordered that the objections of plaintiff filed August 26, 1957, to the report of manner of compliance with peremptory writ of mandamus are over-ruled.

'It is ordered that the motion of plaintiffs' filed June 24, 1957, to produce, is denied.

'It is ordered that the motion of plaintiffs' filed May 17, 1957, for leave to file a response on behalf of plaintiffs to motion of defendants' to advance the case on the civil trial calendar is denied.

'It is ordered that the motion of defendants filed May 3, 1957, to advance the case on the trial calendar is granted.

'It is ordered that the motion of defendants filed May 2, 1957, to set the above captioned case for trial on its merits is granted, and the case is to be set for trial after consultation with attorneys for respective parties.'

About twelve days later when counsel for the parties were in consultation, counsel for plaintiffs filed an affidavit of bias and prejudice against Judge Thurman. Defendants objected to the judge recognizing the affidavit but after some study of the matter the judge felt impelled to give it legal effect but withheld his final ruling until the matter could be submitted to this court. We issued alternative writ of prohibition.

We have recognized that prohibition is an available remedy under the circumstances herein related. Arizona Conference Corp. of Seventh Day Adventists v. Barry, 72 Ariz. 74, 231 P.2d 426.

The local rules of the superior court in Maricopa County concerning the assignment of cases to the respective divisions make provision for the assignment judge within his discretion to assign a case to a particular judge 'as a permanent assignment'. Thereafter that judge is to handle all matters concerning that case. Such was the situation of this case when it was before respondent Thurman. A case thus assigned is taken out of the category of other cases wherein motions and other matters prior to trial are processed through the assignment judge.

Section 12-411, A.R.S., reads as follows:

'A. Not more than one change of venue or one change of judge may be granted in any action, but each party shall be heard to urge his objections to a county or judge in the first instance.

'B. A change of venue or judge shall be to the most convenient county, or judge, to which the objections of the parties do not apply or are least applicable.

'C. If the parties agree upon a county or judge, such county or judge shall be selected.'

It is the contention of petitioners that to allow the respondent judge to honor the affidavit filed against him would violate this statute in that the plaintiffs in the action had already secured one change of judge by requesting Judge Stevens to disqualify, even though Judge Stevens did not require plaintiffs to file the statutory affidavit. We have held that the statute limits the right of a party to one change of judge. In re Estate of...