Felix v. Superior Court of Pima County
| Decision Date | 08 November 1962 |
| Docket Number | No. 7670,7670 |
| Citation | 375 P.2d 730,92 Ariz. 247 |
| Parties | Eugene M. FELIX, Petitioner, v. The SUPERIOR COURT OF the COUNTY OF PIMA and Tucson Gas., Electric Light & Power Company, a corporation, Respondents. |
| Court | Arizona Supreme Court |
Clarence E. Houston, Tucson, for petitioner.
Darnell, Holesapple, McFall & Spaid, Tucson, for respondent Tucson Gas, Electric Light & Power Co.
On January 10, 1962, the respondent, Tucson Gas, Electric Light and Power Co., filed a complaint for the condemnation of 'an easement and right of way in portions of the lands * * * [of the petitioner] * * * in, over, upon and across the same, and under the same at supporting structure locations, for the purpose of constructing, using and maintaining electric light and power transmission lines, towers and poles * * *'. On the same date the respondent filed, application for an order granting immediate possession and use of the subject property. On February 5, 1962, the Superior Court of Pima County entered an order granting to the respondent the immediate possession and use of the property under the provisions of A.R.S. § 12-1116.
In a related action the respondent obtained immediate possession and use on February 5, 1962, of certain real property adjacent to the Felix property belonging to the Hughes Tool Company. The respondent's proceedings against Hughes Tool and Felix were consolidated in the court below. On February 8, 1962, Hughes Tool petitioned for a Writ of Certiorari in this Court to test the propriety of the trial court's order granting possession and use to the respondent prior to a jury determination of the damages arising from the taking. Felix took no action at that time to obtain review of the order of the court.
Respondent entered into possession of the Felix premises and on February 23, 1962, completed construction of a steel power line tower thereon. On April 5, 1962, this Court handed down its decision in Hughes Tool Company v. Superior Court of Pima County, 91 Ariz. 154, 370 P.2d 646 (1962). We there held that the immediate possession provisions of A.R.S. § 12-1116 are unavailable to non-municipal corporations under our Constitution, Art. 2, § 17, A.R.S. Following this decision, the petitioner Felix on April 13, 1962, filed a motion to vacate the order of the Superior Court which permitted respondent to enter into possession and use of the Felix property. By stipulation, the hearing on this motion was continued until after the mandate of this Court in the Hughes case (in which a motion for rehearing was pending) would be returned to the Superior Court. A rehearing in the Hughes case was denied by this Court and the hearing on the Felix motion to vacate was held on June 27th, 1962. At that time the motion to vacate was denied. Thereafter this petition for certiorari was filed to test the propriety of the February 5th order of the Superior Court of Pima County which granted immediate use and possession of the Felix property to the respondent.
The circumstances in this case are essentially identical to those of the Hughes case, supra, and the legal issues are settled in that opinion. However, the respondent contends that the remedy of certiorari should not be available to the petitioner in this case because of his failure to seek timely review of the order granting respondent immediate possession of the property in question.
Petitioner did not file his petition for certiorari until July 12, 1962, five months and seven days after the entry of the order of which review is now sought. He took no action whatever to attack the order until after his co-defendant below, the Hughes Tool Company, had obtained a favorable ruling from this Court. At that time he filed his motion to vacate in the lower court. During the three months and eight days that intervened between the filing of the order of immediate possession and the filing of the motion to vacate, the respondent, relying on an apparently valid and unquestioned order, entered the premises and on February 23, 1962 completed the construction of a steel tower thereon.
Our statutes and rules do not limit the time within which a petition for certiorari may be filed. It is, however, universally recognized that in a proper case the doctrine of laches may be applied to bar the remedy of certiorari, 1 e. g. Hammond Lumber Co. v. Board of Supervisors, 85 Cal.App.2d 568, 193 P.2d 503 (1948); State Civil Service Commission v. Cummings, 83 Colo. 379, 265 P. 687 (1928); ...
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Mohave County v. Mohave-Kingman Estates, Inc.
...of time will not bar an action without a change of position induced by the inaction of the plaintiff. Felix v. Superior Court of the County of Pima, 92 Ariz. 247, 375 P.2d 730 (1962). Waiver is also an equitable defense, one closely related to estoppel. State v. Goff, 99 Ariz. 79, 407 P.2d ......
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Industrial Commission v. Superior Court In and For Pima County
...an intervening change of position of the respondents induced by the inaction of the petitioner. See Felix v. Superior Court of County of Pima, 92 Ariz. 247, 250, 375 P.2d 730 (1962). It was the opinion of this court that the eleven months delay in seeking review of the venue ruling by certi......
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...the absence of a time limit in the rules or by statute, case law establishes that the “normal appeal period” still governs. Quoting Felix v. Superior Court, they argue our supreme court held that “in the absence of a statutory time to file a petition for certiorari, the normal period grante......
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...(2) injury to defendant due to such lack of diligence. Day v. Wiswall's Estate, 93 Ariz. 400, 381 P.2d 217; Felix v. Superior Court of County of Pima, 92 Ariz. 247, 375 P.2d 730; Kengla v. Stewart, 82 Ariz. 365, 313 P.2d 424. While lapse of time is an essential element of laches, the length......