Conkling v. Crosby

• Decision Date: 29 September 1925
• Docket Number: Civil 2393
• Citation: 239 P. 506,29 Ariz. 60
• Parties: AMALIA HUNING CONKLING, HENRY HUNING AND MARIA HUNING, Petitioners, v. J. E. CROSBY, as Judge of the Superior Court of Navajo County, State of Arizona, and THE BANK OF WINSLOW, a Corporation, Respondents
• Court: Arizona Supreme Court

239 P. 506

29 Ariz. 60

AMALIA HUNING CONKLING, HENRY HUNING AND MARIA HUNING, Petitioners, v. J. E. CROSBY, as Judge of the Superior Court of Navajo County, State of Arizona, and THE BANK OF WINSLOW, a Corporation, Respondents

Civil No. 2393

Supreme Court of Arizona

September 29, 1925

Original proceeding for Writ of Prohibition. Peremptory writ granted. On hearing to determine whether writ should be made absolute, writ quashed.

Messrs Armstrong, Lewis & Kramer, for Petitioners.

Messrs Kibbey, Bennett, Gust, Smith & Lyman, for Respondent J. E Crosby.

OPINION

JENCKES, Superior Judge.

A peremptory writ of prohibition was issued out of this court upon application of petitioners to the respondent J. E. Crosby, as judge of the superior court of Navajo county, requiring him to refrain, until the further order of this court, from taking any further action in the determination of that certain cause in the said superior court entitled Bank of Winslow, plaintiff, v. Union Bank & Trust Company, a Corporation, as executor of the estate of Henry Huning, deceased, the Union Bank & Trust Company, trustee, and George Hubbard, defendants, and to show cause upon a day therein stated why such writ should not be made permanent. The respondent Crosby duly filed his return to the writ, and, first, moved that the writ be quashed upon the ground that the same was issued without jurisdiction; second, demurred upon the ground that the petition upon which the writ was issued "failed to state any ground for the issuance of said writ and for the remedy therein prayed for, and upon the ground that said petition fails to state facts sufficient to constitute any ground for relief or cause of action against this respondent"; and third, made answer to the allegations of fact set forth in the petition as the basis for the writ, which said allegations of fact, stated briefly, are that the said respondent was, prior to the filing and during the pendency before him of the cause in question, indebted to the plaintiff in said cause, the Bank of Winslow, in a large sum of money, and was therefore disqualified to sit in judgment in said cause by reason of his bias and prejudice in said plaintiff's favor due to such indebtedness. The answer of respondent admits his indebtedness to the said Bank of Winslow in the sum of $5,000 or $6,000 as alleged by petitioners, but alleges:

"That he was not conscious of any actual prejudice or bias for or against the party plaintiff or any of the parties defendant in said cause; that such disqualification was never suggested to him by any party to said action formally or informally, by affidavit or otherwise."

The cause in question had been tried before respondent without a jury, and judgment only remained to be rendered when the writ of prohibition herein was issued.

As to the jurisdiction of this court to issue the writ, it is only necessary to notice that the cause in which the respondent is by the writ prohibited from taking further actions is one over which this court has appellate jurisdiction, in order to determine that we have jurisdiction in this proceeding, provided the further condition hereinafter noted is found to exist. Const., Ariz. art. 6, § 4; Rev. Stat. (Civ. Code) 1913, par. 328; Tyler v. District Court, 14 Ariz. 6, 123 P. 315; State ex rel. v. Sapp; 15 Ariz. 24, 135 P. 718; Powers v. Superior Court, 15 Ariz. 275, 138 P. 21. That the further condition imposed by the Constitution does exist, viz., that the issuance of the writ in this instance is necessary and proper for the complete exercise of such appellate jurisdiction, can hardly be questioned. Petitioners here, although beneficially interested in the subject matter of the cause in question, as heirs at law of Henry Huning, deceased, are nevertheless strangers to that proceeding. They have no appeal from any judgment or order which may be made in the case; nor any means of procuring an appeal to be taken, or of bringing to the attention of this court upon appeal the question of the disqualification of the trial judge, nor have they any other remedy provided by law. It is matter of great public concern that the courts keep within their prescribed jurisdiction, and that the judiciary do not preside therein, when for any reason they are in anywise disqualified therefor. A means ought always to be provided for the determination of the question of the jurisdiction of the court or the qualification of the judge to preside in any case where either is challenged, even though, as here, the challenge is interposed by those who are strangers to the proceedings. That they are strangers gives this court the right to grant or refuse the writ, in its discretion, but has no bearing on the question of jurisdiction. 22 R.C.L. 7; Van Dyke v. Superior Court, 24 Ariz. 508, 211 P. 576. We have no hesitation, therefore, in holding that, if the facts presented here warrant it, the issuance of the writ is necessary and proper for the complete exercise of the appellate jurisdiction of this court.

Respondent, however, questions the jurisdiction of this court to issue the writ upon another ground, which, briefly stated, is that, because the statutes of this state (par. 500, Rev. Stat. Ariz. 1913, Civil Code), prescribe the method and manner of disqualifying the trial judge, the petitioners, having wholly failed to bring themselves within the provisions of the statute by which the right of the judge to sit might be challenged, have left the court with jurisdiction of the case; that as the trial court had jurisdiction over the case at the time the petition herein was filed, therefore this court was without jurisdiction to issue the writ. It is to be noted here that it is not the jurisdiction of the court that is challenged but the right and propriety of the judge to preside over the trial of the case. Prohibition is available to challenge the qualification of the judge as well as the jurisdiction of the court. State ex rel. McAllister v. Slate, 278 Mo. 570, 8 A.L.R. 1226, 214 S.W. 85, and annotation at page 1236. The fact that the court may have jurisdiction over the parties and subject matter of the action can have no bearing upon the question presented here of the qualification of respondent to preside in the case. The provisions of paragraph 500, Revised Statutes of Arizona of 1913, Civil Code, are as follows:

"If either party to a civil action brought in any superior court shall file an affidavit alleging either:

"(1) That the judge of said court has been engaged as counsel in the case prior to his appointment or election as judge, or is otherwise interested in the case.

"(2) That said judge is of kin or related to either party.

"(3) That the said judge is a material witness in the case.

"(4) That the affiant has cause to believe and does believe that on account of the bias or prejudice or interest of said judge he cannot obtain a fair and impartial trial.

"It shall be the duty of said judge to at once request the judge of the superior court of some other county to hold the superior court in the county where such action is pending, and to preside at the trial of such action, and to hear all the matters involved therein."

In Allan v. Allan, 21 Ariz. 70, 185 P. 539, we held that the foregoing provisions of statute were but declaratory of the common-law rule that no judge ought to act where from interest or any other cause he is supposed to be partial, and that consequently the rule of decision in this respect is that of the common law, as required by paragraph 5555, Revised Statutes of Arizona of 1913, Civil Code. Quoting from the opinion in that case delivered by Chief Justice Cunningham:

"An impartial, fair-minded judge is aware of his qualifications to try a cause coming on before the trial begins. If he is disqualified by reason of bias and prejudice arising from his relationship to the parties from his having been counsel in the case before he became judge, or because he is a witness in the case, no reason ought to prompt him to act as judge. The parties and the public alike do not sanction his action in such circumstances because the existence of either relation imports bias and prejudice. In such event (which we sincerely trust will never arise in this state), the judge is presumed to be disqualified as a fact, and if he acts thereafter, his acts are the acts of a disqualified person, having been so disqualified before the trial commenced as a fact, without regard to the time of filing the application and affidavit supporting it, setting forth the relation 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, that, "while it is well settled by the common law that no judge ought to act where, from interest or from any other cause, he is supposed to be partial to one of the suitors, yet his action in such a case is regarded as an error or irregularity not affecting his jurisdiction, and to be corrected by a vacation or reversal of his judgment, except in the case of those inferior tribunals from which no appeal or writ of error lies." 1 Freeman on Judgments, 5th ed., 657, par. 329. In other words, the acts of a judge laboring under such disqualification are, by the rule of the common law, not void, but voidable only. It is therefore clear that, while they may not be questioned in a collateral proceeding, they may be the subject of a direct attack, if made in due season, such as petitioners have instituted here.

If indebtedness of a presiding judge to one of the parties to a proceeding before him be a disqualifying circumstance, then it appears from the petition and answer herein that the respondent was disqualified to act...