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In re Estate of Sears

Supreme Court of Arizona

June 26, 1939

In the Matter of the Estate of W. P. SEARS, Also Known as WILLIAM P. SEARS, Deceased; WILLIAM P. OLLIVER and ROBERT D. OLLIVER, Minors, by Their Guardian ELLA SEARS KAY, Appellants,
v.
ALMA G. SEARS, as Executrix of the Will of W. P. SEARS, Deceased, Appellee

APPEAL from an order of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Order affirmed.

Mr. F. L. Zimmerman and Mr. Allan K. Perry, for Appellants.

Messrs. Phillips, Holzworth & Phillips and Mr. David P. Jones, for Appellee.

OPINION

[54 Ariz. 53] ROSS, C.J.

This is an appeal from an order in probate approving and settling an annual report and account of Alma G. Sears, executrix of the will of W. P. Sears, deceased. The report or account was excepted to by Ella Sears Kay, as guardian of William P. Olliver and Robert D. Olliver, minor grand-children and devisees of the deceased. These minors, by their guardian, Ella Sears Kay, bring the appeal here.

The first action of the court of which appellants complain is directed at an order in Division No. 4 of the court (Judge NILES presiding), assigning the proceeding to Division No. 1 (Judge PHELPS [54 Ariz. 54] presiding) without affording them an opportunity to object to Judge PHELPS. The order for the change of judges was made March 14, 1938, and recited that it was done on the court's own motion. As a matter of fact, the guardian had on March 2, 1938, filed an affidavit of bias and prejudice against Judge NILES and the transfer, we think, should be treated as made in pursuance of the statute. Section 3721, Revised Code of 1928, makes it the duty of a judge, when a disqualifying affidavit is filed with him, to at once transfer the action to some other division of the court, or to request

Page 875

a judge of some other county to preside in the hearing and trial.

Section 3888, Id., besides giving certain grounds of disqualification of a judge, adopts the procedure for changing judges in probate, including the grounds of bias and prejudice, as prescribed in civil actions.

Section 3723, Id., provides that not more than one change of judge shall be granted in an action, but that as to such change each party shall be heard to urge objections to any judge, and the change shall be made to a judge to which the objections do not apply, or are least applicable, or to a judge agreed upon by the parties.

It seems to us that these provisions of the statute made it the duty of the court to give appellants an opportunity to object to Judge PHELPS before entering the order transferring the proceeding to him. The statute is mandatory that the parties have an opportunity to object, in the first instance, to a proposed judge, but the court is not bound by any objection made by the parties and may, in the exercise of a sound discretion, disregard objections.

After the order transferring the matter, the court heard the guardian's objections to Judge PHELPS and overruled them. Although such hearing should have been in advance of the order, the irregularity [54 Ariz. 55] in that respect was waived by the guardian when she applied for and was given an opportunity to urge her objections.

An affidavit of bias and prejudice was filed by the guardian against Judge PHELPS and he, notwithstanding, proceeded to hear and determine the exceptions to the annual report and account of the executrix. It is contended that Judge PHELPS, by reason of such affidavit, was disqualified. The statute, section 3723, supra, however, limits the right to a change of judge to one change.

The court upon the hearing, Judge PHELPS presiding, overruled the guardian's exceptions to the annual report and account of the executrix on the ground the the will of the testator gave her all of the property to use and consume as she saw fit, without requiring her ...


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