Vargas v. Superior Court of Apache County, Civil 4610

• Decision Date: 01 June 1943
• Docket Number: Civil 4610
• Parties: ELENA CASTILLO VARGAS, Petitioner, v. THE SUPERIOR COURT OF APACHE COUNTY, ARIZONA, and the Honorable C. C. FAIRES, Judge of the Superior Court of Gila County, Arizona, presiding as Judge of the Superior Court of Apache County, Arizona, Respondents
• Court: Arizona Supreme Court

138 P.2d 287

60 Ariz. 395

ELENA CASTILLO VARGAS, Petitioner, v. THE SUPERIOR COURT OF APACHE COUNTY, ARIZONA, and the Honorable C. C. FAIRES, Judge of the Superior Court of Gila County, Arizona, presiding as Judge of the Superior Court of Apache County, Arizona, Respondents

Civil No. 4610

Supreme Court of Arizona

June 1, 1943

Original proceeding in Mandamus. Alternative writ made peremptory.

Mr Urban R. Miller, and Messrs. Moore & Romley, for Petitioner.

Honorable C. C. Faires, for himself and other respondents.

OPINION

ROSS, J.

This original proceeding in mandamus grows out of the court's decision in Cause No. 4482, Vargas v Greer and the American Surety Company, ante, p. 110, 131 P. 2d) 818, holding that the plaintiff's complaint states a cause of action and reversing and remanding the cause "for further proceedings."

After the case was remanded to the Superior Court of Apache County in accordance with the directions of the court's opinion Greer and the American Surety Company, the defendants, filed a motion to dismiss the cause "for the reason and upon the ground that the above entitled court sitting as a court of equity has no jurisdiction over the subject matter of said suit."

The same ground had been theretofore presented to the trial court in a motion to dismiss plaintiff's suit, and was before this court when it rendered its decision reversing and remanding the case "for further proceedings." Such ruling of the court disposed of all the grounds urged by defendants Greer and American Surety Company adversely to their contentions. Arizona-Parral Min. Co. v. Forbes, 16 Ariz. 395, 146 P. 504.

Counsel for defendants contend the Supreme Court has no right or power to direct the Superior Court to proceed with the trial of the cause. The Constitution, Article VI, section 4, confers power on the Supreme Court to issue writs of mandamus and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. This provision is ample authority for the proceeding here taken.

The duty of the respondent court and judge to comply with the mandate may not be questioned or evaded. The law is that the mandate must be striclty followed. It is binding on the trial court and enforceable according to its true intent and meaning. 3 Am. Jur. 730, sec. 1234; 5 C.J.S. Appeal and Error, p. 1557, § 1994. When the opinion and mandate are considered together no other conclusion can be drawn than that the court must proceed to try the case on its equity side. It is a suit that seeks to recover from the administrator and his surety, the American Surety Company, the sum of $30,000, which it is alleged came into the possession of the administrator and was never accounted for but was lost through waste, mismanagement and fraud. It seeks to nullify the proceedings in the probate matter and alleges that the administrator secured through his fraud an allowance and settlement of his accounts when they were false and untrue. The mandate directs the court to proceed with the case and it cannot reasonably be construed as a direction that it proceed generally or in another and different case. The court could refer to no other proceeding than the one in which the order "in said cause" was made and entered.

As was said in Swan v. Talbot, 152 Cal. 142, 94 P. 238, 240, 17 L.R.A. (N.S.) 1066:

"... where equity has acquired jurisdiction for one purpose, it will retain that jurisdiction to the final adjustment of all differences between the parties arising from the cause of action presented. It is, indeed, the duty of a court of equity, when all the parties to the controversy are before it, to adjust the rights of all and leave nothing open for further litigation...." This very sound and equitable rule is reaffirmed in Barber v. Superior Court, 43 Cal.App. 221, 184 P. 952, and Iverson v. Roberts, 128 Cal.App. 538, 17 P.2d 1004.

The court's mandate reads as follows:

" Ordered by this Court that the Judgment of the said Superior Court in this cause, dismissing plaintiff's complaint be, and the same is hereby reversed an the cause remanded with directions for further proceedings...