Smith v. Rabb

• Decision Date: 07 November 1963
• Docket Number: No. 7557,7557
• Citation: 95 Ariz. 49,386 P.2d 649
• Parties: Emmet SMITH and Evelyn C. Smith, husband and wife, Appellants, v. Fay RABB, Appellee.
• Court: Arizona Supreme Court

Page 649

386 P.2d 649

95 Ariz. 49

Emmet SMITH and Evelyn C. Smith, husband and wife, Appellants, v. Fay RABB, Appellee.

No. 7557.

Supreme Court of Arizona.

Nov. 7, 1963.

Rehearing Denied Dec. 10, 1963.

Emment Smith and Evelyn C. Smith, in pro. per.

Hill, Savoy & Mitcheil, Phoenix, for appellee.

UDALL, Vice Chief Justice.

This case arose as an action in the Superior Court of Pinal County for judgment on a promissory note and foreclosure of a mortgage by which it was secured. A decree was entered in favor of the plaintiff and defendants now appeal. The record is unusually long and, while it contains much that is irrelevant and serves only to confuse the issues, it presents an intriguing study of a complex and protracted lawsuit. Little evidence was actually introduced at the trial; the record consists largely of allegations, affidavits and exhibits filed in support of defendants' various pre-trial motions. We will summarize the facts which have some bearing on the questions raised here.

On January 9, 1956, defendant Emmet Smith executed a promissory note for $6,000, payable twelve months after date to a Phoenix law firm, Rawlins, Davis, Christy, Kleinman & Burrus. As security, he executed a mortgage on 1440 contiguous acres of farm land in Pinal County. The note and mortgage were assigned to the plaintiff on January 27, 1956. Suit was filed on July 17, 1957, the plaintiff alleging the execution of the instruments, their assignment to him by the named payees and the failure of defendant Emmet Smith to pay the face amount when due. It was further alleged that the note was a community obligation of defendants Emmet and Evelyn Smith.

In his separate answer to the complaint Emmet Smith admitted the execution and assignment of the note and mortgage, but denied the validity of the mortgage lien on the described premises. He alleged that the note was given as consideration for legal services by the payees in defending against another suit in which he was then involved; that the legal services were never rendered; and that the execution of the note was fraudulently induced in that the named payees, plaintiff's assignors, never intended to perform, or that they knew, at least, at the time the note was executed, that the services would never be forthcoming. It was alleged further that plaintiff took the instrument knowing of the failure of consideration and the fraud, and was not, therefore, a holder in due course. If this last allegation were true it would enable defendant to set up the same personal defenses which he could have asserted against the payees themselves. A.R.S. §§ 44-428, 44-458.

The separate answer of Evelyn Smith contained substantially the same denials and allegations as that of her husband and denied in addition that the note was a community obligation or that she had any right, title or interest in the mortgaged property.

After the pleadings were filed a number of motions were made including motions by defendants to bring in plaintiff's assignors as third-party defendants and to dismiss the complaint for lack of indispensable parties. These were denied and the case was finally tried on September 13, 1961.

Defendants did not appear and were not represented at the trial; the plaintiff proceeded with his case and introduced the note, mortgage and assignment as evidence. He testified that he had purchased the note and mortgage for $5,400 and that it remained unpaid. At the close of the evidence the court found for the plaintiff, entered a decree foreclosing the mortgage and ordered the property sold.

No motion to vacate the judgment was ever made and no further proceedings were had at the trial level. Defendants instead filed their notice of appeal and the case was brought here for review. From thirty-one assignments of error enumerated in appellants' brief, we have distilled five which we think merit discussion.

Although the point is not raised by the briefs, we note that appellants conducted their entire case in propria persona, ostensibly for the reason that the ulterior machinations of the serveral attorneys who had previously conducted their business made it impossible for them to get counsel. However that may be, they are entitled to no more consideration than if they had been represented by counsel. Ackerman v. Southern Arizona Bank & Trust Co., 39 Ariz. 484, 7 P.2d 944 (1932). They are held to the same familiarity with required procedures and the same notice of statutes and local rules as would be attributed to a duly qualified member of the bar. Wiedemann v. Fox, 191 Cal.App.2d 812, 13 Cal.Rptr. 161 (1961); Stark v. Stark, 109 N.W.2d 904 (S.D.1961). Such a rule is indispensable to the orderly and efficient administration of justice. With this in mind, we turn to the first of appellants' contentions.

They point out that trial judge T. J. Mahoney had acted as associate counsel for the plaintiff in presenting a motion to set the case for trial. While this was his only appearance as counsel, and took place before his election as judge and subsequent participation in that capacity, they argue that it was nonetheless prejudicial and should vitiate the entire proceedings. We agree that it was at least ground for peremptory challenge under A.R.S. § 12-409. But appellants never filed the required affidavit alleging bias or that Judge Mahoney and previously acted as counsel in the case. In fact, no suggestion of bias was ever made in any manner. The right to apply for a change of judge under the statute is waived if timely objection is not made. Murray v. Thomas, 80 Ariz. 378, 298 P.2d 795 (1956); Arizona Conference Corp. of Seventh Day Adventists v. Barry, 72 Ariz. 74, 231 P.2d 426 (1951).

This statutory disqualification operates, as we have said, as a peremptory challenge only. If partiality of the assigned judge can be shown to exist in fact, we have held that it can be raised at any time as a bar to his further participation. Conkling v. Crosby, 29 Ariz. 60, 239 P. 506 (1925). But even in the Conkling case, the challenge was made before the lower court had entered final judgment. In the present situation, appellants seek reversal for reasons raised in the first instance on appeal. This, we have repeatedly held, cannot be done. See Goodman v. Carson, 84 Ariz. 177, 325 P.2d 819 (1958); Pioneer Construction v. Symes, 77 Ariz. 107, 267 P.2d 740, 41 A.L.R.2d 668 (1954).

Appellants argue further, however, that they had no notice of Judge Mahoney's assignment and no notice that the case had been set for trial; hence, there was no opportunity to challenge his participation. The record contains an order by Judge Mahoney, dated June 22, 1961, granting Emmet Smith 10 days in which to file an amended answer. Presumably this order was made pursuant to motion by defendants. If such was the case, they knew of Mahoney's assignment well in advance of the trial date. In any event, defendants had ample opportunity to move that the judgment be vacated and should have done so. Potter v. Home Owners' Loan Corp., 50 Ariz. 285, 72 P.2d 429 (1937). Moreover, under Uniform Rule of Practice 12, each counsel is responsible for keeping himself advised of the status of his own case. Absent a clear showing to the contrary, we presume the case was set for trial in accordance with Uniform Rules 5(c), (g), and (h). Appellants were therefore on constructive notice of the time of trial. Potter v. Home Owners' Loan Corp., supra; Brown v. Haymore, 43 Ariz. 466, 32 P.2d 1027 (1934); Faltis v. Colachis, 35 Ariz. 78, 274 P. 776 (1929).

Appellants assign as error the failure to grant a trial by jury pursuant to their oral request made on September 14, 1959. A written demand, required by R.Civ.P 38(b), 16 A.R.S., was never made. This constituted waiver of the right to a jury. R.Civ.P. 38(d).

The denial of appellants' motions to bring in third-party defendants and to dismiss the complaint for lack of indispensable parties is also assigned as error. The first of these motions was accompanied by a third-party complaint against Rawlins, Davis, Christy, Kleinman & Burrus, the named payees of the note and plaintiff's assignors. It set up their breach of the contract by which they were to represent appellants, and fraud, in that they induced the execution of the note knowing that the services for which it was given would never be rendered.

Accepting these allegations as true, the third-party defendants may well have been liable to the Smiths for 'all or part of the plaintiff's claim' against them. R.Civ.P. 14(a). On the basis of our opinion in Blakely Oil v. Crowder, 80 Ariz. 72, 292 P.2d 842 (1956), we are inclined to the view that they were not so liable inasmuch as they did not stand in the position of indemnitors of defendants. In any event, it is within the trial court's discretion to deny the motion if it appears that impleader will result in undue complication of the case. General Taxicab Ass'n v. O'Shea, 109 F.2d 671 (D.C. Cir. 1940); American Fidelity & Casualty Co. v. Greyhound Corp., 232 F.2d 89...