Itasca State Bank v. Superior Court In and For Cochise County

• Decision Date: 04 October 1968
• Docket Number: No. 2,CA-CIV,2
• Citation: 445 P.2d 555,8 Ariz.App. 279
• Parties: ITASCA STATE BANK, An Illinis Banking Association, Applicant, v. The SUPERIOR COURT of Arizona, IN AND FOR the COUNTY OF COCHISE and Anthony T. Deddens, a Judge thereof, Respondent; Helen HEIDORN, Real Party in Interest. 585.
• Court: Arizona Court of Appeals

Page 555

445 P.2d 555

8 Ariz.App. 279

ITASCA STATE BANK, An Illinis Banking Association, Applicant, v. The SUPERIOR COURT of Arizona, IN AND FOR the COUNTY OF COCHISE and Anthony T. Deddens, a Judge thereof, Respondent Helen HEIDORN, Real Party in Interest.

No. 2 CA-CIV 585.

Court of Appeals of Arizona.

Oct. 4, 1968.

Riley & Slaughter by Alan L. Slaughter, Bisbee, for applicant.

Williams & Ryan, by Martin F. Ryan, Douglas, for real party in interest.

KRUCKER, Judge.

The petitioner, hereinafter referred to as 'the bank', seeks intervention of this court by way of extraordinary writ to review a refusal by the respondent judge to assign a show cause hearing to another judge.

On November 13, 1967, the bank instituted an action upon promissory notes against Kenneth M. Heidorn, nephew of the real party in interest. (Cause No. 24539) The defendant failed to respond within the time prescribed by law, and the bank entered his default. On April 8, 1968, in accordance with Rule 55b(2), 16 A.R.S., a hearing was held by the respondent judge on petitioner's application for judgment by default. Judgment for the bank was entered the same day wherein it was ordered that certain described real property belonging to the defendant, which had been previously levied on by virtue of a writ of attachment, be sold to satisfy the judgment.

Record title to the aforementioned real property was in Helen Heidorn and Kenneth Heidorn, ¹ as joint tenants, at the time this judgment was entered. In April, 1968, Helen Heidorn, by her guardian ad litem, commenced an action in Cochise County Superior Court against Kenneth Heidorn, the bank, and others (Cause No. 24843), to set aside Helen's prior conveyance of the real property on the grounds of her incompetency at the time.

One week prior to a sheriff's sale in accordance with the judgment entered in Cause No. 24539, a petition for a temporary restraining order and a preliminary injunction staying the sale was filed on behalf of Helen Heidorn. (The petition was filed in Cause No. 24539 and a $15 filing fee was paid.) A hearing was set for May 20, 1968, and on the date set for hearing the bank filed an application for a change of judge stating:

'* * * on account of bias, prejudice and interest of the regular presiding trial judge, the Honorable Anthony T. Deddens, a fair and impartial trial cannot be had.'

The bank's counsel did not appear at the show cause hearing. The presiding judge asked counsel for Helen Heidorn what his position was concerning the application for change of judge, to which counsel responded:

'It appears to be in conformance with the Statutes. I would like to have it immediately assigned to Division II so it could be heard this morning.'

The trial judge, however, refused to assign the matter to another judge, ruling that the application was not timely filed. At the conclusion of the hearing, the court granted a preliminary injunction. The validity of the refusal to honor the bank's affidavit is challenged in these proceedings.

The real party in interest contends that the issue has been rendered moot by virtue of a judgment entered on July 16, 1968, in Cause No. 24843. ² Although as a general rule we will not consider moot questions or abstract propositions, J. R. Francis Construction Co. v. Pima County, 1 Ariz.App. 429, 403 P.2d 934 (1965); Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 291 P.2d 764 (1955), we recognize exceptions where the principle involved is a continuing one. Board of Examiners etc. v. Marchese, 49 Ariz. 350, 66 P.2d 1035 (1937). Since the question of whether an application for a change of judge is timely filed when directed to a judge who has conducted a hearing on an application for default judgment may plague the bench and bar in the future, we granted review by certiorari.

A.R.S. § 12--409 provides:

'A. If either party to a civil action in a superior court files an affidavit alleging any of the grounds specified in subsection B, the judge Shall at once transfer the action to another division of the court if there is more than one division, or Shall request a judge of the superior court of another county to preside at the trial of the action.

'B. Grounds which may be alleged as provided in subsection A for change of judge are:

* * * * * *

'5. That the party filing the affidavit has cause to believe and does believe that on account of the bias, prejudice, or interest of the judge he cannot obtain a fair and impartial trial.' (Emphasis supplied)

The language of the foregoing statute is clearly imperative and imposes no time limitation. The mere filing of the affidavit operates ipso facto to bar the trial judge from proceeding in the matter, and, notwithstanding he might feel the affidavit is filed to harass the court, he can perform no other function but to transfer the case to another judge. Murray v. Thomas, 80 Ariz. 378, 298 P.2d 795 (1956); Itule v. Farley, 94 Ariz. 242, 383 P.2d 127 (1963). The trial judge to whom the affidavit of disqualification is addressed has...