Arizona Conference Corp. of Seventh Day Adventists v. Barry, 5489

Citation72 Ariz. 74,231 P.2d 426
Decision Date07 May 1951
Docket NumberNo. 5489,5489
PartiesARIZONA CONFERENCE CORP. OF SEVENTH DAY ADVENTISTS v. BARRY, Judge.
CourtArizona Supreme Court

Terrance A. Carson and Gust, Rosenfeld, Divelbess, Robinette & Linton, all of Phoemix, for petitioner.

Snell & Wilmer, by Edwin Beauchamp, Phoenix, for respondent.

DE CONCINI, Justice.

In the Superior Court of Maricopa. County, in the cause of Everett and Georgia C. Hampton, et al., plaintiffs, v. Arizona Conference Corporation of Seventh Day Adventists, defendant-petitioner, the complaint charged defendant with violation of the building restrictions contained in the deed to its property in the University Park addition to the city of Tempe, state of Arizona, by the construction of a church where the restrictions provide the premises be used for residential purposes only Plaintiffs secured an order requiring defendant to show cause why a temporary injunction should not be issued enjoining defendant from proceeding further with the construction of said church.

The regularly scheduled hearing on plaintiffs' order to show cause for a temporary injunction was heard and taken under advisement by respondent in the instant case, Honorable Ralph Barry, Judge of the Superior Court. Respondent then issued a written order denying a temporary injunction against petitioner. In an accompanying unsigned memorandum respondent stated that, after having taken a view of the premises involved, he was of the opinion that the use to which the property surrounding that on which petitioner was erecting its church was being put, made it unnecessary to give further force and effect to the deed restrictions against petitioner's property.

Following this order plaintiffs filed a request for change of judge based on an affidavit of bias and prejudice of respondent. Respondent granted plaintiffs' request, but before a new judge was selected, defendant petitioned this court for an alternative writ of prohibition to prevent respondent from assigning the case. As a premise for the writ defendant asserts that it was improper for respondent to grant the request and assign the case on the basis of an affidavit of bias and prejudice which was made after respondent had already ruled on litigated matters. The writ was issued together with an order to show cause why it should not be made permanent. Respondent answered that under Article 6, section 7, of the Arizona Constitution, he has the right to assign a case to another judge; and under Section 21-107, A.C.A.1939, he must assign it when an affidavit of bias and prejudice is filed against him.

Both parties have filed extensive briefs and have raised several technical objections to the timing of the hearings on the motions for change of judge and summary judgment in the court below. Stripping the briefs of their superfluities, we have three basic questions to answer in disposing of this case.

First, was the request for a change of judge based on an affidavit of bias and prejudice timely filed after the court had heard evidence and ruled on the motion for a temporary injunction, under Section 21-107, A.C.A.1939? The answer is, no. One of the best reasoned cases on this point is State ex rel. Shufeldt v. Armijo, 39 N.M. 502, 50 P.2d 852, 855, in which it was said: 'We hold that an affidavit of prejudice is timely made if filed and called to the attention of the court before it has made any ruling on any litigated or contested matter whatsoever in the case, either on a motion, demurrer, or plea of the party making the affidavit, or on the motion, demurrer, or plea of any other party to the action, of the hearing of which the party making the affidavit has been given notice, otherwise it is not timely made. * * *'

The instant case falls squarely in that category. Here a hearing was had and a ruling made on a litigated and contested matter. A motion for a change of judge untimely filed need not be granted, Mosher v. Wayland, 62 Ariz. 498, 158 P.2d 654.

Article 6, section 7, of the Arizona Constitution provides...

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23 cases
  • Gerety v. Demers
    • United States
    • New Mexico Supreme Court
    • December 13, 1978
    ...797-98 (2d Cir. 1966); Duplan Corporation v. Deering Milliken, Inc., 400 F.Supp. 497, 526-27 (D.S.C.1975); Arizona Conference Corp. v. Barry, 72 Ariz. 74, 231 P.2d 426, 428 (1951); Williams & Mauseth Ins. Brokers, Inc. v. Chapple,11 Wash.App. 623, 524 P.2d 431, 434 (1974). Recusal should be......
  • McClenny v. Superior Court of Los Angeles County
    • United States
    • California Supreme Court
    • January 28, 1964
    ...Moreover, several courts have reached results in closely analogous cases consonant with our decision. (E. g., Arizona Conference Corp. v. Barry (1951) 72 Ariz. 74, 231 P.2d 426 (motion filed prior to hearing on permanent injunction but subsequent hearing on temporary injunction held not tim......
  • Demers v. Gerety
    • United States
    • Court of Appeals of New Mexico
    • February 7, 1978
    ...a valid reason. Williams & Mauseth Ins. Brokers, Inc. v. Chapple, 11 Wash.App. 623, 524 P.2d 431, 434 (1974); Arizona Conference Corp. v. Barry, 72 Ariz. 74, 231 P.2d 426 (1951); Clawans v. Waugh, 10 N.J.Super. 605, 77 A.2d 519 (1950); Board of County Com'rs of Pitkin v. Blanning, 29 Colo.A......
  • State v. Neil
    • United States
    • Arizona Supreme Court
    • March 29, 1967
    ...Caples v. State, 3 Okl.Cr. 72, 26 L.R.A. (N.S.) 1033, 104 P. 493.' 33 Ariz. at 402, 265 P. at 616 In Arizona Conference Corp. of Seventh Day Adventists v. Barry, 72 Ariz. 74, 231 P.2d 426, the rule in regard to waiver of the peremptory right was given a more strict interpretation, and the N......
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