Condos v. Superior Court in and for Maricopa County

• Decision Date: 17 October 1925
• Docket Number: Civil 2419
• Citation: 29 Ariz. 186,239 P. 1032
• Parties: PETER CONDOS, E. D. BROWN and F. W. BROWN, Relators, v. THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, and M. T. PHELPS, Judge of Division No. 1 of the Said Superior Court of the State of Arizona, in and for the County of Maricopa, Respondents
• Court: Arizona Supreme Court

239 P. 1032

29 Ariz. 186

PETER CONDOS, E. D. BROWN and F. W. BROWN, Relators, v. THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, and M. T. PHELPS, Judge of Division No. 1 of the Said Superior Court of the State of Arizona, in and for the County of Maricopa, Respondents

Civil No. 2419

Supreme Court of Arizona

October 17, 1925

Original proceeding for Writ of Prohibition. Alternative writ granted. On hearing to determine whether writ should be made permanent. Writ quashed.

Mr. Leo Alldredge and Mr. John W. Pruitt, for Relators.

Mr. M J. Dougherty, for Respondents.

OPINION

LOCKWOOD, J.

On the 2d of March, 1925, a complaint was filed against one Peter Condos in the police court of the town of Mesa, charging him with the offense of keeping a disorderly house, contrary to the ordinance of the town. A warrant was duly issued for his arrest, and he was tried in the police court on the eleventh day of March. He was found guilty as charged, and on the twelfth day of March was sentenced to pay a fine of $290 and to serve ten days in the town jail. An appeal was duly taken to the superior court, and an appeal bond in the sum of $300 signed by Condos, E. D. Brown and F. W. Brown was executed and filed with the transcript. Thereafter, on the 25th of April, Charles. A. Carson, Jr., deputy county attorney of Maricopa county, and Honorable John W. Pruitt, attorney for Condos, appeared in the superior court, and upon the motion of the deputy county attorney, the court ordered the action dismissed on account of insufficient evidence, and the bond exonerated. Shortly after the order of dismissal was entered M. J. Dougherty, the city attorney of Mesa, informed the county attorney's office that the conviction was one for violation of the city ordinance and not of the statute.

It has been the custom for many years for all appeals from the police courts of the various cities in Maricopa county to be handled by the different city attorneys; the county attorney's office taking no charge thereof. For this reason the county attorney of Maricopa county appeared before the superior court on the fourth day of May, in company with the city attorney of Mesa, and explained the circumstances to the judge who had dismissed the action, whereupon, on the motion of the city attorney, the order dismissing the case was revoked, and it was reinstated. Thereafter the matter was set down for trial in the superior court, over the objections of the attorney for Condos; he claiming the court had lost jusisdiction. Condos and the Browns thereupon filed a petition for a writ of prohibition against the superior court proceeding with the trial, the alternative writ was issued, and the matter is now befor us.

There is but one question of law for us to consider: Did the superior court have the right to vacate its order dismissing the action? If it did, the writ of prohibition must be denied; if it did not, it should be made permanent. Condos' position is that he was charged with a misdemeanor, and that, the same having been dismissed upon the application of the county attorney, such dismissal was a bar to any other prosecution for the same offense. He cites, as sustaining his position, sections 1277 and 1279, Penal Code of 1913, which read as follows:

"1277. The court may, either of its own motion or upon the application of the county attorney, and in furtherance of justice, order an action or an indictment or information to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. . .

"1279. An order for the dismissal of the action, as provided in this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor; but it is not a bar if the offense is a felony."

The position of respondent, on the other hand, is that the particular charge against Condos was not an offense which the county attorney's office is in the habit of handling, but the same, according the the custom of the court, was in charge of the authorities of the town of Mesa, and therefore the order of dismissal was made under a misunderstanding as to the facts, and that, the true situation being called to the attention of the court, it very properly vacated the order of dismissal.

Without determining whether or not Condos was charged with a misdemeanor, it is apparent from the showing made before us that the case was dismissed...