Stephens v. Stephens

• Decision Date: 16 October 1915
• Docket Number: Civil 1474
• Citation: 152 P. 164,17 Ariz. 306
• Parties: LEVI B. STEPHENS, Appellant, v. ELLA STEPHENS, Appellee
• Court: Arizona Supreme Court

152 P. 164

17 Ariz. 306

LEVI B. STEPHENS, Appellant, v. ELLA STEPHENS, Appellee

Civil No. 1474

Supreme Court of Arizona

October 16, 1915

APPEAL from a judgment of the Superior Court of the County of Greenlee. F. B. Laine, Judge. Reversed and remanded, with directions.

Mr. L Kearney, for Appellant.

Mr. E V. Horton, for Appellee.

OPINION

ROSS, C. J.

In April, 1911, the territorial district court in and for Greenlee county entered a decree divorcing the parties to this litigation. In that decree the court awarded the custody of three minor children to Ella Stephens, the appellee, and directed the appellant to pay to her, for the support of said minor children, the sum of $15 per month. January 28, 1915 the appellee filed her petition entitled in said cause in the superior court of said Greenlee county, in which she asks that said allowance be increased to $75 per month. The appellant on or about the fifth day of February, 1915, filed his answer to the application for increase in allowance, in which he resisted such increase, claiming that there had been no change in the conditions. The application for increased allowance was noticed for hearing on February 15, 1915.

On February 16, 1915, by agreement of counsel, the court ordered the hearing to be continued until March 2, 1915. On March 2, 1915, the regular attorney of appellant not being able to appear (reason not shown), special counsel for appellant moved a continuance of the case. Said motion was granted by the court, and the case set down for hearing March 16, 1915, and the appellant was ordered to pay the costs of defendant's witnesses incurred to that date. On March 15, 1915, appellant filed his application for change of judge, based upon his affidavit to the effect that the presiding judge where and before whom the matter was pending and triable was biased and prejudiced, as he had cause to believe, and did believe, and because of such, and the interest of said judge, affiant could not obtain a fair and impartial trial in said matter. The appellee was duly served with notice of said application for change of judge, and noticed that same would be presented to the court on the twenty-second day of March, 1915. On the fifteenth day of March, 1915, the court took up said motion for change of judge and denied the same. On the call of the case on March 16, 1915, counsel for appellant renewed their application for change of judge, which was again denied, the court saying:

"It is not necessary for the court to secure the consent of either of the parties to this matter to call in another judge. I do not think this affidavit is filed in good faith, and, besides, the affidavit does not set out a single fact to authorize this court to call in another judge. The ruling of yesterday will stand and this motion will be denied."

The appellant assigns as error the court's ruling denying the change of judge upon his affidavit that he had cause to believe, and did believe, that on account of the bias, prejudice and interest of said judge he could not obtain a fair and impartial trial. There is another error assigned, but we do not think it necessary to consider it.

Paragraph 500 of the Civil Code of 1913 provides:

"If either party to a civil action brought in any superior court shall file an affidavit alleging either:

"(1) That the judge of said court has been engaged as counsel in the case prior to his appointment or election as judge, or is otherwise interested in the case.

"(2) That said judge is of kin or related to either party.

"(3) That the said judge is a material witness in the case.

"(4) That the affiant has cause to believe and does believe that on account of the bias or prejudice or interest of said judge he cannot obtain a fair and impartial trial --

"It shall be the duty of said judge to at once request the judge of the superior court of some other county to hold the superior court in the county where such action is pending, and to preside at the trial of such action, and to hear all the matters involved therein."

The affidavit in this case is in the language of the statute. The language of the statute is not exceptional; it being found in the laws of other states. So far as we have been able to discover, the courts have uniformly held, where an affidavit of bias and prejudice is in the language of the statute, the presiding judge can perform no other function in connection with the case other than to make an order that the trial be had before another judge, as provided by the statute. The truth of the affidavit filed is not what disqualifies the judge, but the affidavit itself. As was said in Washoe Copper Co. v. Hickey, 46 Mont. 363, 128 P. 584:

"To disqualify a judge under subdivision 4, above, the litigant is not required to state any facts upon which his claim of the judge's bias or prejudice is founded, and in this aspect of the case the proceeding is analogous to that invoked in the exercise of a peremptory challenge to a juror. It is not the bias or prejudice which works his disqualification, but the mere filing of the affidavit in time, even though the judge against whom it is aimed be entirely free from either charge."

Chief Justice RYAN, in Vogel v. Milwaukee, 47 Wis. 435, 2 N.W. 543, speaking of a statute of Wisconsin like ours, said:

"The venue is to be changed, not upon the fact of the judge's prejudice, but upon the imputation of it. Van Slyke v. Insurance Co., 39 Wis. 390 And the statute, as it now stands, appeals to the conscience of the party for a reasonable apprehension, not for the truth of the fact upon which the apprehension rests. It goes upon a statement of belief, not of fact, save in so far as belief may be a fact; upon assertion that the party has reason to believe and does believe that he cannot receive a fair trial on account of the judge's prejudice, not upon averment of the prejudice itself." Rea v. State, 3 Okl.Cr. 276, 139 Am. St. Rep. 954, 105 P. 384; Ex parte Ellis, 3 Okl.Cr. 220, Ann. Cas. 1912A, 863, 25 L.R.A. (N.S.) 653, 105 P. 184.

It is the contention of the appellee that the appellant by his conduct in consenting to and asking for continuances waived his right to a change of judge. There is nothing in the statute to support such contention. When a change of venue is demanded, at least five days' notice thereof is required to be given to the opposite party, as provided in paragraph 498, Id., and the truth and sufficiency of the ground alleged for the change of venue are, by the statute, made discretionary with the court. Paragraph 496. The purpose of the notice of the application, where the truth and sufficiency of the ground alleged may be contested by the opposite party, is to allow him time in which to prepare for the hearing upon the application. But where one of the grounds allowed by the statute for a change of the judge is alleged, the court or judge to whom it is addressed has no discretion whatever as to its truth or sufficiency, if it complies with the language of the statute. Nor has the opposite party any right to contest the ground or grounds alleged. "If either party . . . shall file an affidavit alleging either, . . . it shall be the duty of said judge to at once request the judge," etc., is the command. The fact of filing an affidavit of the kind designated imposes the duty upon the judge at...