Murray v. Thomas, 6233
| Decision Date | 26 June 1956 |
| Docket Number | No. 6233,6233 |
| Citation | 298 P.2d 795,80 Ariz. 378 |
| Parties | Della Mae MURRAY, Administratrix of the Estate of John Charles Delbridge, deceased, Petitioner, v. Frank E. THOMAS, Judge of the Superior Court of Cochise County, Respondent. |
| Court | Arizona Supreme Court |
John Pintek, Bisbee, for petitioner.
Wesley E. Polley, Bisbee, for respondent.
Della Mae Murray, administratrix of the estate of John Charles Delbridge, deceased, filed petition for writ of prohibition against the Honorable Frank E. Thomas, judge of the superior court of Cochise County, Arizona. We issued alternative writ.
It appears from the record that prior to the appointment of petitioner as administratrix, the decedent's surviving widow, Velma Mae Delbridge, was so appointed and that Wesley E. Polley was her attorney. Thereafter, Mrs. Delbridge became incompetent and Mrs. Murray, petitioner herein, was appointed guardian of her estate and administratrix of decedent's estate. Attorney John Pintek represents the petitioner as administratrix. Thereafter, Mr. Polley filed a petition for allowance of attorneys fees and costs he expended as attorney for Mrs. Delbridge when she was administratrix. Mrs. Murray, as present administratrix, filed objection to the petition for attorneys fees and costs upon the ground, among others, that Mr. Polley had in his possession stocks, bonds and assets of the estate for which he had refused and neglected to make an accounting. Mrs. Murray also filed an affidavit in the following words:
'That she does not believe that she can obtain a fair and impartial trial before Frank E. Thomas, for the reason and upon the grounds of the bias and prejudice of the said Frank E. Thomas.'
and asked that the matter be assigned to another judge for trial. The honorable trial judge refused to recognize the affidavit and proceeded with the hearing, after which he made the following order 'That the petitioner be allowed $125.00 as and for attorneys fees, and $64.03 costs; that all assets of the estate now in the possession of the petitioner be forthwith delivered to the attorney for the administratrix; that the bond of the administratrix be, and is hereby fixed in the sum of $10,000.00'
Respondent admits he will proceed to hear and determine any matters necessarily leading to the final administration of the estate. It appears from the record that petitioner has been threatened with a citation for contempt of court for failure to comply with the order. We must conclude, therefore, that respondent will proceed to hear any matters concerning the execution of the order.
While the foregoing order appears to be eminently fair to all interested parties, yet we are compelled to say that the judge should have recognized the affidavit and he had no jurisdiction to do other than transfer the matter to another judge. Mosher v. Wayland, 62 Ariz. 498, 158 P.2d 654. The order therefore was void and, so long as anything remains to be done under a void order, prohibition may prevent the doing thereof. Pacific Greyhound Lines v. Brooks, 70 Ariz. 339, 220 P.2d 477. In probate matters upon the...
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