Ross v. White

• Decision Date: 23 October 1935
• Docket Number: Civil 3585
• Citation: 46 Ariz. 304,50 P.2d 12
• Parties: JOHN W. ROSS, Appellant, v. Y. C. WHITE, State Superintendent of Banks and Ex-officio Receiver of Arizona Southwest Bank, Insolvent, Appellee
• Court: Arizona Supreme Court

50 P.2d 12

46 Ariz. 304

JOHN W. ROSS, Appellant, v. Y. C. WHITE, State Superintendent of Banks and Ex-officio Receiver of Arizona Southwest Bank, Insolvent, Appellee

Civil No. 3585

Supreme Court of Arizona

October 23, 1935

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Appeal dismissed.

Mr John W. Ross and Mr. William Spaid, for Appellant.

Mr John L. Sullivan, Attorney General, Mr. Allan K. Perry, Mr Lloyd J. Andrews and Mr. Evo De Concini, Assistant Attorneys General, for Appellee.

OPINION

FAIRES, Superior Judge.

On June 21, 1931, Arizona Southwest Bank, having its main office in Tucson, with branches in Douglas, Coolidge, and Casa Grande, failed to open its doors, and was taken over by James B. Button, superintendent of banks, for liquidation. On this date K. Berry Peterson, the then Attorney General of Arizona advised the superintendent of banks that he should employ John W. Ross, petitioner below, the appellant herein, as legal counsel in the liquidation of said bank. This was done and Mr. Ross acted as legal adviser to the superintendent of banks in this liquidation until August 1, 1933. On this last-named date, having delivered to the Attorney General all pending files pertaining to the Arizona Southwest Bank, a dispute arose between the appellant and Y. C. White, superintendent of banks, successor to James B. Button, as to payment of legal services rendered on behalf of the insolvent bank. Thereafter, on December 23, 1933, this appellant filed a petition alleging, among other things, an agreement of employment between himself and Clarence Cox, deputy superintendent of banks under James B. Button, superintendent of banks, whereby the petitioner was to be paid a monthly retainer fee, certain commissions, and the reasonable value of the services rendered, to be determined on petition and showing to the court. The answer of the superintendent of banks was filed on March 27, 1934, which, in effect, denies everything pleaded by petitioner, and sets up in defense an altogether different contract of employment. The matter was tried before the Honorable FRED W. FICKETT of Pima county on April 23, 1934, the result being a denial of the petition.

The record here presents many questions, but it is only necessary to dispose of certain assignments of error in order to determine the cause. First, is the order herein involved a final order from which an appeal lies? It is the contention of appellee that the order from which this appeal is attempted to be prosecuted is not an appealable order, subject to review by this court. They argue that the appeal, if any, must be from the order approving or rejecting the receiver's final account, citing Ritter v. Arizona Cattle Co., 34 Ariz. 278, 271 P. 25, as upholding this view. While we agree with the reasoning in that case, that neither an order approving monthly reports of a receiver nor an order directing him to pay attorneys' fees, made before the coming in of his final account, is a final order and appealable, here we have a different situation, which is answered fully by one of appellee's cited cases, In re Prescott Bank's Estate, 36 Ariz. 419, 286 P. 189, and the authorities cited therein.

This action was instituted by an attorney at law, the appellant, wherein he sought an order of the court directing the superintendent of banks to pay him a sum of money upon a quantum meruit, to be determined in payment of specific services rendered. The order finally entered by the court was not an interlocutory order, but was a final judgment of the court, definitely settling, as far as the ruling of the court was concerned, the rights of the petitioner and the liability of the estate of Arizona Southwest Bank to the petitioner, hereinafter referred to as appellant. As such, we hold that the order made by the court was a final order, and, hence, appealable under section 3659, subdivision 1 of the 1928 Code of Arizona.

Secondly, we are called upon to review assignments of error based upon the alleged bias and prejudice of the trial judge. These assignments rest, in part, upon a claim of surprise at the failure of Judge FICKETT to assign the matter to another judge, for hearing, set up in an affidavit filed by appellant in support of a motion for a new trial, and, in part, upon the conduct of the judge during the hearing.

So far as the claim of surprise is concerned, it is sufficient to point out, in the first place, that such surprise is not the kind of surprise for which, under the statute, a new trial can be granted, and, in the second place, that the Code provides a convenient way to effect a change of judge by the simple expedient of filing an affidavit of disqualification. The record in this case is silent as to any attempt on the part of appellant to...