Hickox v. Superior Court In and For Maricopa County

• Decision Date: 01 February 1973
• Docket Number: No. 1,CA-CIV,1
• Citation: 505 P.2d 1086,19 Ariz.App. 195
• Parties: John HICKOX, Petitioner, v. The SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF MARICOPA, the Honorable Ed W. Hughes, Judge theerof, and Catherine Hickox, Respondents. 2241.
• Court: Arizona Court of Appeals

Page 1086

505 P.2d 1086

19 Ariz.App. 195

John HICKOX, Petitioner, v. The SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF MARICOPA, the Honorable Ed W. Hughes, Judge theerof, and Catherine Hickox, Respondents.

No. 1 CA-CIV 2241.

Court of Appeals of Arizona, Division 1, Department B.

Feb. 1, 1973.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Jay M. Martinez, Phoenix, for petitioner.

Flynn, Kimerer, Thinnes & Galbraith by Richard L. Parrish, Phoenix, for respondents.

JACOBSON, Chief Judge, Division One.

This special action requires the court to determine whether a peremptory challenge under Rule 42(f), Rules of Civil Procedure, 16 A.R.S., may be withdrawn when it appears that the challenge was made in vain.

In this divorce action proceeding, plaintiff-real party in interest, Catherine Hickox, filed an order to show cause against the petitioner, John Hickox, which was returnable on September 11, 1972, before the Honorable W. E. Patterson who was at that time serving as a pro tem judge of the Maricopa County Superior Court. Judge Patterson on his own motion reset the order to show cause hearing for October 16, 1972. On September 17, 1972, Mrs. Hickox's counsel, pursuant to Rule 42(f), Supra, filed a Notice of Change of Judge against Judge Patterson. This counsel later testified that the reason for filing the Notice of Change of Judge was 'personal to us and the plaintiff, we affidavited or noticed that change of judge, on Judge Patterson, subsequent to this because we do not wish to go before him for any purpose on October 16th.' Pursuant to this notice, Judge Patterson entered an order transferring the cause 'to the Presiding Judge for reassignment.' The hearing on the order to show cause was then assigned by the Presiding Judge to the Honorable Philip W. Marquardt, for trial and all further proceedings.

Judge Patterson, having completed his service as a judge pro tem, left the Maricopa County Superior Court bench on October 6, 1972--ten days prior to the rescheduled hearing. Because of scheduling conflicts in Judge Marquardt's court, the order to show cause hearing was again rescheduled.

On November 15, 1972, Mrs. Hickox filed a motion entitled 'Motion to Withdraw Notice of Change of Judge and to Re-assign Case to Division From Which It Came.' The basis of Mrs. Hickox's motion was that she had in essence wasted her peremptory challenge for change of judge because of the temporary status of Judge Patterson as he would not have sat on her order to show cause in any event, and this temporary status was unknown to Mrs. Hickox or her counsel. This motion was argued to Judge Marquardt on November 15, 1972, and denied. The same motion was then presented to the acting presiding judge, who because of personal acquaintance with the litigants transferred the matter to the Honorable Ed W. Hughes, who as special acting presiding judge, granted the motion and assigned the matter to the Honorable David M. Lurie for further proceedings on November 21, 1972. Following a petition filed by Mr. Hickox before Judge Hughes to reconsider his order granting the motion, which was denied, counsel for both parties, on November 17, 1972, informally conferred with this court anticipating the filing of a special action. Because of the nearness of the pending hearing before Judge Lurie--November 21, 1972--this court discouraged the filing of such a special action and none was filed. On November 20, 1972, Mrs. Hickox asked for and was granted a continuance of the November 21, 1972, hearing, and the matter was reset for January 3, 1973.

Mr. Hickox, following the granting of the continuance, again made application for a special action in this court which was filed, and oral arguments were heard thereon on December 13, 1972. Following oral arguments this court entered an order accepting jurisdiction of the special action and granting a portion of the relief requested with an indication that a written opinion would follow. This is that written opinion as required by Rule 7(d), Rules of Procedure for Special Actions, 17 A.R.S., as amended.

Special action is a proper method of testing matters dealing with a peremptory challenge of a judge. Hofstra v. Mahoney, 108 Ariz. 498, 502 P.2d 1317 (1972).

Mr. Hickox in his petition for special action requested relief in three areas:

(1) That the order of Judge Hughes reinstating in Mrs. Hickox a Rule 42(f) peremptory challenge for change of judge be vacated;

(2) That the order of Judge Lurie granting a continuance of the order to show cause hearing be vacated; and,

(3) That this court order all matters to proceed before Judge Marquardt.

As to the relief requested against Judge Lurie, the court notes that he was not made a party to this special action proceeding, nor was he served nor did he appear in this matter. Rule 2, Rules of Rpocedure for Special Actions, in part provides: 'The complaint shall join as a defendant the body, officer, or person against whom relief is sought.' The petitioner having failed to join Judge Lurie as a party respondent to his petition, this court is without jurisdiction to grant any relief against him.

Turning now to the relief requested against the order of Judge Hughes granting Mrs. Hickox's motion to withdraw her previous peremptory challenge exercised against Judge...