Zuniga v. Superior Court of State, In and For Maricopa County, 5892
| Decision Date | 26 April 1954 |
| Docket Number | No. 5892,5892 |
| Citation | 269 P.2d 720,77 Ariz. 222 |
| Parties | . Supreme Court of Arizona |
| Court | Arizona Supreme Court |
Kenneth Biaett, Glendale, for petitioner.
William P. Mahoney, Jr., Maricopa County Atty., John F. Conner, Chief Deputy County Atty., Phoenix, for respondents.
This is an original proceeding in mandamus initiated by petitioner, Joe Zuniga, seeking to compel respondent, Charles C. Bernstein, presiding Judge of Division 3 of the Superior Court of Maricopa County, to hear and determine petitioner's complaint for divorce.
The facts are these: petitioner, as plaintiff, through his attorney filed a complaint in cause No. 34489 against defendant, Alice Zuniga, his wife, praying that he be granted a decree of divorce. Teodora Salinas, a sister of petitioner, made affidavit that defendant was a nonresident of the State of Arizona and that her residence was unknown to the plaintiff or herself. Upon this affidavit defendant was purportedly served with a copy of summons by publication, and some time later the clerk entered defendant's default. Plaintiff being then in the armed forces stationed in Germany and unable to attend the trial in person, the judge of Division 2 entered an order authorizing the taking of plaintiff's deposition, which was thereafter taken and filed in said cause. In due time the cause was assigned by the judge of the assignment division of said court to Division 3, presided over by respondent, for trial. On the appointed day plaintiff's attorney, accompaind by Teodora Salinas, the sister of plaintiff, appeared before said court and asked that the trial proceed. Counsel announced that the sister would testify from her own knowledge as to the truth of all allegations contained in the complaint, and that the deposition of plaintiff would be offered in evidence. For reasons which are hereinafter stated, the respondent judge did not enter upon a hearing but upon his own motion made the following order: 'Order: transferring this case back to the Assignment Clerk for further disposition.'
As no appeal would lie from this order and petitioner conceived that he was without remedy, application was made to us for an alternative writ of mandamus to compel respondent judge to conduct a hearing on the case. Notice of the application was given respondent in accordance with our rules, but no appearance being made on the date set we issued an alternative writ of mandamus. Thereafter respondent filed an answer to the writ, supported by his affidavit. The matter having been fully briefed by both parties, oral argument was waived and the case submitted for decision.
Respondent takes the position that initially he had a right to recuse himself on his own motion, even though he was not acquainted with either of the parties, because of a bias against the interest of plaintiff (petitioner) due in part to a prejudice against hearing a divorce matter where he would be denied the opportunity of confrontation with the plaintiff-witness. Petitioner on the other hand contends, it would seem, that he has a legal right to have respondent judge and none other hear his case.
This is an unusual situation, as in matters of this kind a litigant is usually endeavoring to effect the disqualification of a presiding judge. This case is readily distinguishable from our decision in Arizona Conference Corp. v. Barry, 72 Ariz. 74, 231 P.2d 426, for there the judge had conducted a hearing on an order to show cause for a temporary injunction and had made rulings on litigated and contested matters. We held under those circumstances that he might not be disqualified by an affidavit of bias and prejudice, for having put his hand to the plow he must go through to the end of the row. Certainly the supreme court will not permit a superior court judge to shirk a judicial duty which he should perform, any more than it will sanction the unauthorized exercise of authority that does not belong to him. However, the intent of our rules and statutes is to have cases tried by judges who are not biased or prejudiced in any particular. Therefore we hold that a judge may on his own motion, if he acts timely, recuse himself even though the reason given might not be sufficient to form the basis of a legal disqualification, Cf. State v. Blackwell, 65 Nev. 405, 425, 198, P.2d 280, 200 P.2d 698, ...
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