Liston v. Butler

• Decision Date: 22 December 1966
• Docket Number: Nos. 1,CA-CIV,s. 1
• Citation: 421 P.2d 542,4 Ariz.App. 460
• Parties: Lincoln LISTON, Appellant, v. Brien H. BUTLER, Appellee. Lincoln LISTON, Appellant, v. Robert K. BROWN, Appellee. 307, 1 308.
• Court: Arizona Court of Appeals

Page 542

421 P.2d 542

4 Ariz.App. 460

Lincoln LISTON, Appellant, v. Brien H. BUTLER, Appellee.

Lincoln LISTON, Appellant, v. Robert K. BROWN, Appellee.

Nos. 1 CA-CIV 307, 1 CA-CIV 308.

Court of Appeals of Arizona.

Dec. 22, 1966.

Rehearing Denied Jan. 17, 1967.

Review Denied Feb. 21, 1967.

James E. Grant, Phoenix, for appellant.

Morris Rozar, Phoenix, for appellees.

CAMERON, Judge.

This is an appeal from a decision in two cases, Liston v. Butler (1 CA-CIV 307) and Liston v. Brown (1 CA-CIV 308), which were consolidated for hearing in the trial court as well as upon appeal. In 307, Brien H. Butler is the plaintiff and Lincoln Liston is the defendant. In 308, Lincoln Liston is the plaintiff and counterdefendant Robert K. Brown the defendant; and Brien H. Butler the defendant-intervenor and counterclaimant. From judgments in favor of Brien H. Butler, Lincoln Liston prosecutes these appeals.

We are called upon to determine:

1. The sufficiency of affidavits of bias and prejudice filed in the two cases by the attorney for Liston.

2. Jurisdiction of the court to render a judgment against Liston, a resident of Nevada, in the case wherein he was the defendant.

3. The question of abuse of the trial court's discretion in granting a default judgment in favor of Butler.

4. Whether the trial court properly allowed Butler to set aside the judgment and intervene in the Liston v. Brown suit.

The facts necessary for a determination of this matter are as follows: On 28 April 1964, Brien H. Butler brought a suit against the defendant, Robert K. Brown and wife, in the Justice Court of the Northwest Phoenix Precinct, Maricopa County, for amounts due and owing. At the time suit was brought, the Browns owned a 1964 Thunderbird automobile, subject to a purchase money lien in favor of the Associates Finance Corporation. After the suit was commenced, Brown, on 11 May 1964, executed a second lien on said automobile titled 'chattel mortgage' in the amount of $1,500.00 in favor of Lincoln Liston, a resident of the State of Nevada. On 28 May 1964, Butler obtained a judgment against Brown in the Justice Court, and on 8 June 1964, a writ of execution was issued, but they were unable to locate the automobile. On 2 July 1964, a new title was issued to Brown by the Motor Vehicle Division of the Arizona Highway Department showing the first lien of Associate Finance Corporation and a second lien of Lincoln Liston. Meanwhile, the automobile was located, and on 25 September was sold at an execution sale to Butler. Butler then paid $2,892.60 to Associates Finance Corporation and the first lien was satisfied.

Butler later learned of the $1,500.00 lien of Liston's and on 13 October 1964, filed his complaint in Maricopa County Superior Court (1 CA-CIV 307) against Lincoln Liston claiming that the purported lien of the defendant Liston was fraudulent, invalid, without consideration, and that 'plaintiff's title to said automobile is not subject to any lien whatsoever of the defendants.' Service pursuant to Rule 4(e)(1) and 4(e)(2), Rules of Civil Procedure, 16 A.R.S., was made upon the defendant Liston by the Sheriff of Eureka County, Nevada, on 26 October.

Three days after Butler filed his suit, Liston, on 16 October, instituted an action (1 CA-CIV 308) in the Maricopa County Superior Court against Brown for breach of contract and replevin. Defendant Brown accepted service of the summons on the same day. A default judgment was entered 24 November 1964, and on 28 November 1964, the automobile was seized by the Sheriff of Maricopa County from the possession of Butler and upon instructions of Liston's attorney the automobile was released to Brown, and the execution returned 'unsatisfied.'

Butler then petitioned to intervene in the Liston v. Brown suit as a party defendant, and to vacate and set aside and declare as totally void the judgment of 24 November 1964, for failure to join an indispensable party and for fraud perpetrated on the petitioner and the court itself. Butler moved to consolidate the two suits. Before these matters could be heard, the following affidavits were filed as to both actions:

'James E. Grant being duly sworn and according to law disposes and says that he is the attorney for plaintiff and duly authorized to make this affidavit,

'That the Honorable William H. Holohan is not qualified to hear the motion heretofore filed in this case for the reason that the plaintiff has reason to believe and does believe that he is biased and prejudiced against this affiant in this cause and that a fair and impartial trial cannot be had in said court before said Judge.

/s/ James E. Grant'

The court refused to honor these affidavits. After hearing, the court, on 23 December, granted Butler's motion to intervene and set aside the judgment in Liston v. Brown, and to consolidate the two matters. After further action and motions the court granted judgment in favor of Butler in both cases.

AFFIDAVIT OF BIAS AND PREJUDICE

We are first called upon to determine the effect of the affidavit of bias and prejudice. A.R.S. § 12--409, quoted below on the subject of grounds for change of judge, states:

'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. * * *

'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 that on account of the bias, prejudice, or interest of the judge He cannot obtain a fair and impartial trial.' (emphasis ours)

Rule 11(b) of the Rules of Civil Procedure, 16 A.R.S., provides:

'* * * When in a civil action an affidavit is required or permitted to be filed, the pleading may be verified, or the affidavit made, by the party Or by a person acquainted with the facts, for and on behalf of such party.' (emphasis ours)

Once a proper affidavit is filed, the Superior Court judge is without power to proceed, and must transfer the cause to another judge. Itule v. Farley, 94 Ariz. 242, 383 P.2d 127 (1963); Stephens v. Stephens, 17 Ariz. 306, 152 P. 164 (1915). The trial judge may even recognize an oral motion to disqualify. American Buyers Life Insurance Company v. Superior Court, 84 Ariz. 377, 329 P.2d 1100 (1958).

Under our statute, the trial judge has no right to pass upon the truth or falsity of the facts alleged in the affidavit or adjudicate the question of his disqualification if the affidavit has been timely filed and is legally sufficient. The affidavit must, however, comply with the statute and the court may properly examine the affidavit for the purposes of determining whether or not it meets the requisites of the statute. If it does not, the court may, as here, disregard it.

We hold that, whenever it is deemed necessary to make and file an affidavit of bias and prejudice on behalf of a party under the aegis of Rule 11(b), the affiant must conform to the requirements of the rule and affirm his personal belief in the tribunal's disqualification. The statute (12--409 A.R.S.) when read together with the rule requires that the affiant take oath concerning His own belief in the bias and prejudice of the judge. The vice of these affidavits is affiant's attempt to affirm the belief of another.

The fact that the affiant claims that he represents the plaintiff when, in fact, he represents the defendant in Butler v. Liston, might be considered a clerical error, but the affidavit claims plaintiff believes that the judge is 'biased and prejudiced against the affiant.' The affiant is the attorney and we do not read the statute to indicate that an attorney may file an affidavit based upon the alleged bias and prejudice of the court towards the said attorney as a basis for a disqualification.

JURISDICTION OF THE COURT OVER LISTON IN THE CASE OF Butler v. Liston

We are next concerned with the jurisdiction of the court over Lincoln Liston a resident of Nevada, in the matter of Butler v. Liston. Butler brought suit against Liston for fraud arising out of the matter of Liston v. Brown in which Liston had invoked the aid of the Arizona courts to allegedly commit a fraud on Butler, a resident of Arizona, and, if the allegations of Butler's complaint are correct, on the courts and the Motor Vehicle Division of the State of Arizona as well. Our Court has stated:

'There is nothing in these rules pertaining to service which specifies that service * * * by personal service out of the state or by registered mail have any different efficacy than service within the state in the usual manner.' Bakins v. Huish, 1 Ariz.App. 258, 260, 401 P.2d 743, 745 (1965).

In the instant case, the defendant Liston was served with process by the Sheriff of Eureka County, Nevada, as provided by our rules which read in part:

'When the defendant is a * * * person * * * which has caused an event to occur in this state out of which the claim which is the subject of the complaint arose, service may be made as herein provided, and when so made shall be the same effect as personal service within the state * * *.' Rule 4(e)(2), Rules of Civil Procedure, 16 A.R.S.

Liston caused an 'event to occur' in Arizona when he filed the $1,500.00 lien with the Motor Vehicle Division of the Arizona Highway Department. Liston caused a further event to occur in this State when he sought to foreclose the lien in Liston v. Brown. The suit in Butler v. Liston was a direct attack upon that lien and any resulting judgment:

'* * * due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he shall have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice. " International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Even were this not the case, it is noted that on...