Campbell v. Deddens

• Decision Date: 07 February 1974
• Docket Number: CA-CIV
• Citation: 518 P.2d 1012,21 Ariz.App. 295
• Parties: David H. CAMPBELL, Superintendent, Motor Vehicle Division, Arizona Highway Department, Petitioner, v. Anthony DEDDENS, Judge of the Superior Court of Arizona, Cochise County; Sam KING, Jr., Real Party in Interest, Respondent. No 21579.
• Court: Arizona Court of Appeals

Page 1012

518 P.2d 1012

21 Ariz.App. 295

David H. CAMPBELL, Superintendent, Motor Vehicle Division, Arizona Highway Department, Petitioner, v. Anthony DEDDENS, Judge of the Superior Court of Arizona, Cochise County; Sam KING, Jr., Real Party in Interest, Respondent.

No 2 CA-CIV 1579.

Court of Appeals of Arizona, Division 2.

Feb. 7, 1974.

As Corrected on Denial of Rehearing March 13, 1974.

Review Denied April 9, 1974.

Gary K. Nelson, Atty. Gen., by John .l. Jones, Asst. Atty. Gen., Phoenix, for petitioner

William F. Olson, Bisbee, for respondent King.

OPINION

KRUCKER, Judge.

An order denying petitioner's motion for a change of venue is the subject of this special action. Since venue rulings are appropriately reviewable by special action, Southwest Forest Homes, Inc. v. Superior Court, 20 Ariz.App. 152, 510 P.2d 1057 (1973), we assume jurisdiction.

Respondent King filed a complaint in Chchise County Superior Court alleging that petitioner, the named defendant, had wrongfully refused to issue a driver's license to him. Subsequently, with leave of court, respondent filed a First Amended Complaint which alleged an additional cause of action, i.e., a breach of duty owed to respondent for which compensation in monetary damages was requested.

Prior to expiration of the time to answer the amended complaint, petitioner filed a motion for change of venue, pursuant to A.R.S. § 12--404, supported by an affidavit to the effect that petitioner is a public officer holding office only in Maricopa County, and requesting transfer of the action to Maricopa County. No controverting affidavit was filed but the requested venue change was denied.

Petitioner concedes that venue was properly laid in Cochise County when the original complaint was filed since respondent King was seeking judicial review pursuant to A.R.S. § 28--1122. The trial court, in denying petitioner's motion for a change of venue after the amended complaint was filed, apparently concluded that the motion was not timely since petitioner had filed his answer to the original complaint. We are of the opinion that this was error.

A.R.S. § 12--401, as amended, provides in pertinent part:

'No person shall be sued but of the county in which he resides, except:

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16. Actions against public officers shall be brought in the county in which the officer, or one of several officers holds his office.'

When a proper request for a change of venue has been made, it is mandatory that the cause be transferred. GAC Properties, Inc. of Arizona v. Farley, 14 Ariz.App. 156, 481 P.2d 526 (1971); Southwest Forest Homes, Inc. v. Superior Court, supra. The pivotal question is--was petitioner's request timely after the amended complaint had been filed?

Rule 15(a) 2, Rules of Civil Procedure, 16 A.R.S., requires a party to plead in response to an amended pleading within a designated time. Where a complaint is amended in a material way, as is the case here, a defendant has a right to plead De novo to the amended complaint and such right is one of which he cannot be deprived. Kalish v. Brice, 130 Colo. 220, 274 P.2d 600 (1954); Griffin v. International Longshoremen's and Warehousemen's Union, Local 1--13, 109 Cal.App.2d 823, 241 P.2d 552 (1952); 61 Am.Jur.2d, Pleading § 331. When respondent filed an amended complaint, such pleading superseded his original complaint which then became Functus officio. Rodriguez v. Rodriguez, 8 Ariz.App. 5, 442 P.2d 169 (1968); Foreman & Clark Corp. v. Fallon, 3 Cal.3d 875, 92 Cal.Rptr. 162, 479 P.2d 362 (1971). Since the amended complaint took the place of the original, all subsequent pleadings are based on the amended complaint. Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964). Consequently, petitioner's answer to the amended complaint became his first responsive pleading to the merits of respondent's claim even though petitioner had responded to the original...