Walker v. Burr

• Decision Date: 17 December 1951
• Docket Number: No. 5393,5393
• Citation: 238 P.2d 950,73 Ariz. 129
• Parties: WALKER, Superintendent of the Arizona Highway Patrol et al. v. BURR.
• Court: Arizona Supreme Court

Page 950

238 P.2d 950

73 Ariz. 129

WALKER, Superintendent of the Arizona Highway Patrol et al. v. BURR.

No. 5393.

Supreme Court of Arizona.

Dec. 17, 1951.

Rehearing Denied Jan. 16, 1952.

Fred O. Wilson, Atty. Gen., Perry M. Ling, Chief Asst. Atty. Gen., for appellants.

Cusick & Watkins, of Tucson, for appellee.

STANFORD, Justice.

On September 19, 1949, Waldon v. Burr, appellee herein, then a captain in the highway patrol, was notified by the superintendent of the Arizona Highway Patrol that he was discharged, effective September 30, 1949. At the same time he was advised of his right to have the action of the superintendent reviewed by the Merit System Council, and accordingly Burr filed his notice of appeal with the Council. The appeal was set for hearing in Phoenix, Arizona, on October 28, 1949. Burr appeared at the hearing with his attorney, and took part in the proceedings. Although the Council subpoenaed witnesses for Burr, they did not appear at the hearing for the reason, as stated by counsel for Burr, that their fees were not advanced.

The matter was submitted to the Council after testimony was taken and no request was made by Burr for a continuance to secure witnesses who did not appear, nor was there any avowal as to what they would testify to had they been present.

On November 5, 1949, the Council entered its decision and order affirming the action of the superintendent in discharging appellee. On November 23, 1949, Burr petitioned the superior court of Pima county for a writ of certiorari to review the action taken by the Council.

The granting of the writ was followed by an order to show cause, and the matter was submitted to the court on the record made before the Council.

Briefs were submitted and on May 10, 1950, the superior court entered judgment in favor of Burr, on the ground 'that the Plaintiff did not have a fair hearing before the Merit System Council, under Section 66-701d, in that no witnesses were available at the hearing to testify on behalf of the Plaintiff', thereby declaring the proceedings before the Merit System Council null and void and of no effect.

Under the provisions of section 28-105, A.C.A.1939, this appeal is now taken from the judgment of the superior court. Appellants offer but one assignment of error, as follows: 'The Superior Court erred in its determination that a fair hearing could not be had before the Highway Patrol Merit System Council unless witnesses who had been subpoenaed were available to testify on behalf of the Plaintiff.' Following the said assignment of error, appellants have submitted the following three propositions of law:

'I

'In the event witnesses are not for any reason present at the time of a hearing it is the duty of the party to seek a postponement of the hearing under Article 8, Chapter 21, A.C.A.1939. Failing to do so the party may not thereafter assert he was denied a fair hearing by reason of the absence of such witnesses.

'II

'In the event a party fails to tender witnesses fees and mileage to witnesses subpoenaed by him, he may not thereafter claim denial of due process when his witnesses fail to appear at a trial.

'III

'Where a party to an action before a Merit System Council or similar body fails to assert his right to a continuance and fails to present any showing as to the evidence sought from absent witnesses, he may not wait until the council rules against him and then assert that he has been denied due process of law because witnesses were not present.'

In support of the first and third propositions of law, it is asserted that whenever a party appears for trial and finds for the first time that his witnesses are not present, it is his duty to comply with section 21-801, A.C.A.1939, which reads: 'Whenever an action has been set for trial on a specified date by order of the court, no postponement of the trial shall be granted except for sufficient cause, supported by affidavit, or by consent of the parties, or by operation of law.' Text support for this claim is found in 17 C.J.S., Continuances, § 13: 'A party waives whatever rights he may have to a continuance by appearing and going to trial, or proceeding with the trial, without asking for a continuance; * * *.'

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