Hendrickson v. Superior Court In and For Cochise County

• Citation: 73 A.L.R.2d 1235,330 P.2d 507,85 Ariz. 10
• Decision Date: 15 October 1958
• Docket Number: No. 6682,6682
• Parties: , 73 A.L.R.2d 1235 Mae HENDRICKSON, Petitioner, v. The SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF COCHISE, and the Honorable Frank E. Thomas, Judge thereof, Respondents.
• Court: Supreme Court of Arizona

Page 507

330 P.2d 507

85 Ariz. 10, 73 A.L.R.2d 1235

Mae HENDRICKSON, Petitioner, v. The SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF COCHISE, and the Honorable Frank E. Thomas, Judge thereof, Respondents.

No. 6682.

Supreme Court of Arizona.

Oct. 15, 1958.

Anthony T. Deddens, Bisbee, for petitioner.

Gentry, McNulty & Kimble, Bisbee, for respondents.

WINDES, Justice.

Mae Hendrickson, hereinafter designated petitioner, and one Joe Botzko each filed a petition to probate alleged holographic wills of E. R. Pague, deceased. Belle Grimshaw, sister of decedent, contested the probate of either alleged will and Botzko contested the probate of the will alleged in Hendrickson's petition. The matter was heard before a jury and resulted in a mistrial because of failure to agree. Thereafter Botzko and Grimshaw each filed separate petitions for the appointment of a special administrator. Prior to the hearing of these petitions, Hendrickson filed a motion for change of judge upon the ground of bias and prejudice supported by her affidavit reciting the former trial and discharged jury and stating the following:

'That, because of matters and facts of which affiant was not aware at the start of said trial, affiant states that she has cause to believe and does believe that the Honorable Frank E. Thomas is biased and prejudiced, and that on account of said bias and prejudice she cannot obtain a fair and impartial retrial of the issues of said case before the said Judge Frank E. Thomas.'

The respondent judge assigned the cause to the Honorable Jesse A. Udall, judge of the superior court of Graham county, and set the petitions for the appointment of special administrator for hearing by Judge Udall on April 30, 1958. On April 21st respondent judge of his own motion made an order vacating the order assigning the matter to Judge Udall and on the day set for the hearing, Judge Udall at the request of respondent judge, reassigned the matter to him for all further proceedings. Ruspondent proceeded to hear the petitions for special administrator. Petitioner objected to respondent proceeding in the hearing and renewed her motion for change of judge. The respondent heard from opposing counsel and denied the motion upon the ground the affidavit was not timely filed and was of no force and effect and proceeded to hear the matter. Petitioner withdrew from the hearing. The court appointed an administrator and thereafter set the case for retrial. We ordered issuance of alternative writ of prohibition commanding respondent to desist and refrain from further proceeding in the action until further order of this court.

The question for solution is whether under the foregoing circumstances the respondent judge could decide as a matter of law that the affidavit of bias was of no force and effect because not timely filed. The rule is that an affidavit of bias and prejudice must be seasonably filed or it is waived. It is likewise the rule that when the disqualifying facts are unknown to affiant until after the expiration of the time that the affidavit should normally be presented the application for change of judge is timely if made upon the discovery of such facts. This latter rule is well stated in 48 C.J.S. Judges § 94, page 1086, as follows:

'Where the party entitled to object is not informed of the disqualifying facts...