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State ex rel. Frohmiller v. Hendrix

Supreme Court of Arizona

April 20, 1942

STATE OF ARIZONA ex rel. ANA FROHMILLER, State Auditor, Appellant,
v.
HERMAN E. HENDRIX, CLYDA S. MARKHAM, UNITED STATES FIDELITY & GUARANTY COMPANY, a Corporation, Appellees

Page 769

APPEAL from an order of the Superior Court of the County of Maricopa. John P. Clarke, Judge. Order reversed and case remanded with instructions.

Mrs. Ana Frohmiller, Appellant, in propria persona.

Messrs. Lewkowitz & Wein, for Appellee Markham.

OPINION

Page 770

[59 Ariz. 186] LOCKWOOD, C.J.

On January 25, 1940, the State of Arizona, on the relation of Ana Frohmiller, as state auditor, filed in the superior court of Maricopa county, a complaint against Herman E. Hendrix, Clyda S. Markham, and United States Fidelity & Guaranty Company, a corporation, to recover money belonging to the State of Arizona, which it was alleged had been wrongfully misappropriated by the two defendants first named. On April 1, 1940, a judgment in favor of defendants Hendrix and United States Fidelity & Guaranty Company was duly rendered. Markham answered, and the case against her came on for trial before a jury, which ultimately reported it was unable to agree on a verdict, and it was discharged. During all these proceedings, plaintiff was represented by P. H. Brooks, a member of [59 Ariz. 187] the state bar and the deputy state auditor. On July 31, 1941, a motion to dismiss the case without prejudice was filed, founded upon a stipulation entered into between counsel for defendant Markham and Brooks, and on August 1 an order was entered granting the motion. The next day an application for reinstatement of the case, signed by Ana Frohmiller as state auditor, was filed. Allan K. Perry, a member of the state bar, voluntarily appeared on behalf of plaintiff, but was denied the right to act as such representative, though he was permitted to argue the motion as amicus curiae. On October 10 an order was entered by the court reinstating the case, which later was set for trial with a jury.

The matter came on for trial on November 7, Phil J. Munch, a member of the state bar and deputy state auditor, appearing on behalf of plaintiff. Counsel for defendant Markham then presented a motion to dismiss on the ground that the State of Arizona was not properly represented, in that no one but the attorney general, or his assistants, was authorized to represent the plaintiff in the superior court. On November 8, the following order was entered:

"Order defendant's motion to dismiss action because not properly prosecuted before the court is granted," and the matter was brought before us on appeal therefrom.

The questions for our consideration are (a) whether, in an action of this kind, it is properly brought by the state on relation of the auditor, (b) if so, to what extent, if at all, she may appear therein in propria persona or by deputy, and (c) whether she may be represented in court by counsel other than the attorney general or one of his regularly appointed assistants.

Page 771

The constitution of Arizona provides for certain elective state officers, among them being the [59 Ariz. 188] governor, state auditor and the attorney general. Art. 5, § 1, Const. of Arizona. The powers and duties of the governor are to a great extent set forth in the Constitution. Those of the attorney general and the auditor are in no way specified therein beyond the provision of art. 5, § 9, which reads as follows:

"The powers and duties of secretary of state, state treasurer, state auditor, attorney-general, and superintendent of public instruction shall be as prescribed by law."

We, therefore, must refer to the statutes in order to ascertain what powers and duties the legislature has conferred upon these officers. In so doing we should consider all the statutes affecting the question and so construe them together as to, if possible, give effect to all the provisions appearing therein. These sections are subdivision 6, section 4-302, referring to the auditor; and subdivision 2, ...


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