THE FIRST NATIONAL BANK OF HOLBROOK, a Banking Corporation, and J. R. McEVOY, Petitioners,
THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF APACHE, and THE HONORABLE LEVI S. UDALL, as Judge Thereof, Respondents
Original proceeding upon Writ of Certiorari to the Superior Court of Apache County, Arizona. Order of the Superior Court of Apache County set aside and vacated.
Mr. Sidney Sapp and Mr. Guy Axline, for Petitioners.
Mr. Isaac Barth and Mr. Rex E. Lee, for Respondents.
[42 Ariz. 468] RODGERS, Superior Judge.
This is an original proceeding instituted in this court, upon a petition praying that a writ of certiorari issue to the superior court of Apache county, Arizona, commanding the certification of the records and proceedings in probate cause numbered 205, in that court, in so far as such probate proceedings relate to that certain order of disclosure entered by the court, and the proceedings incident thereto, wherein Jacob Barth, administrator of the estate of J. M. Sandoval, deceased, was the petitioner, and the First National Bank of Holbrook, Arizona, and J. R. McEvoy were respondents, to the end that same might be reviewed by this court
Upon the allegations of the petition, the writ was ordered to be issued, and in response to the order contained in the writ, the judge of the superior court of Apache county caused the clerk of said court to certify to this court all proceedings and records in said probate cause No. 205, in so far as such records and proceedings are pertinent to the matters referred to and complained of in the petition filed in this court.
Briefly summarizing the allegations of the petition, and the facts as disclosed by the record, it appears therefrom that one J. M. Sandoval died on the seventeenth day of November, 1932; that on the fifth day of January, 1933, Jacob Barth was appointed administrator of his estate, and duly qualified as such administrator; that on or about the tenth day of March, 1933, the administrator instituted an action in the probate side of the superior court of Apache county, against the petitioners herein, alleging that these petitioners, the respondents therein named, had [42 Ariz. 469] embezzled, concealed, disposed of or appropriated to their own use the proceeds of a certain check in the amount of $2,469.29, which was a part of the assets of the estate of J. M. Sandoval, deceased.
The petition filed in the probate proceedings alleges in detail all of the acts in the premises done by the First National Bank of Holbrook, Arizona, and J. R. McEvoy concerning which complaint was made and a disclosure sought.
Upon the petition there filed by the respondents herein, a citation was issued commanding the petitioners in this action, as the respondents there, to appear in the probate court of Apache county, Arizona, then and there to be examined upon oath upon the matters set forth in the petition of the administrator.
In response to said citation the respondents there, who are the petitioners here, specially appeared for the purpose of presenting a plea to the jurisdiction. They also filed a motion to quash the citation; a motion to dismiss the action; a motion to strike certain designated paragraphs of the petition, and also to strike all of said petition; a special demurrer, and a verified answer in which is set forth at length all facts in their possession, and all information known to them personally, or otherwise obtained by them relative to the disposition of the money concerning which inquiry was being made in the proceedings instituted by the administrator in the probate cause involved, and having divulged under oath all such facts and information said answer further sets forth the reasons for the claim of the First National Bank of Holbrook to the funds in question, and its contentions in the premises; and having thus answered under oath, the answer prays that no further proceedings be had in said cause.
All motions of the respondents were by the court denied and the plea to the jurisdiction and demurrer [42 Ariz. 470] were overruled; and on March 18, 1933, a hearing on the petition and citation was held; and on motion of the petitioners the verified answer of the respondents was by the court stricken.
The petitioners called three witnesses to testify and rested without calling to the witness-stand the respondents who were present in the court in obedience to the citation commanding them to appear and be examined on oath upon the matters set forth in the petition of the administrator.
The respondent, J. R. McEvoy, was thereafter called to testify by counsel for the respondents, and being duly sworn testified fully in regard to the matters set forth in the petition and also in the answer of the respondents, but was prevented from answering many pertinent ...