A. E. ROOKS, doing business as VALLEY CATTLE COMPANY, Petitioner,
T. J. MARKS, as Clerk of the Superior Court of the State of Arizona in and for the County of Pinal, Respondent
Original proceeding in Mandamus. Petition for writ denied.
Mr. Phil J. Munch, for Petitioner.
Mr. W. C. Truman, County Attorney, and Mr. Tom Fulbright, for Respondent.
[59 Ariz. 349] McALISTER, J.
On June 24, 1941, the petitioner, A. E. Rooks, doing business as the Valley Cattle Company, filed an action in the superior
court of Maricopa county, against Charles A. Whitlow, cause No. 50035, and on July 5th, thereafter, before the time for answering had expired, Whitlow filed his affidavit for the removal of the cause, under section 21-102, Arizona Code Annotated 1939, to Pinal County, Arizona, for trial. On July 9th, thereafter, the plaintiff in that action, filed an affidavit controverting defendant's, and on August 11, 1941, the matter was heard by the superior court of Maricopa county, which made an order the same day directing that the cause be removed [59 Ariz. 350] to the superior court of Pinal county. Thereupon the files in the case were sent to the clerk of the superior court of that county and upon receiving them, that officer notified the attorneys of the respective parties that they had been received by him and would be filed and the cause docketed when the filing fee of $10 had been paid.
On September 17, 1941, more than 30 days after the order of removal to the Pinal county superior court had been entered, the petitioner demanded of respondent that inasmuch as the defendant in the cause, the party who had moved for a change of venue, had failed to pay the filing fee of $10, in the Pinal county superior court, the respondent return the files in the cause to the clerk of the superior court of Maricopa county. The respondent declined to comply with this demand, whereupon the petitioner sought and obtained from this court an alternative writ of mandamus directing respondent to transmit the papers as demanded or show cause why he has not done so.
The ground upon which petitioner seeks this relief is that it was the duty of the respondent under the statutes to return the papers in the cause to the court in which the action originated, after 30 days following the entry of the order of removal had passed and the filing fee of $10 had not been paid by the party securing the removal. He bases this contention on the following sections of the Arizona Code 1939, which appear in Article 1 (chapter 21) entitled "Venue of Actions and Change of Venue.":
"21-102. Procedure when action brought in wrong county. -- If the action be not brought in the proper county, the court shall nevertheless have jurisdiction thereof, and may hear and determine the cause, unless the defendant shall, before the expiration of the time allowed to answer, file with the clerk of the court in which the action is brought an affidavit of the defendant, [59 Ariz. 351] his agent or attorney, stating that the county in which the action is brought is not the proper county and stating the county of the defendant's residence, and praying that the action be transferred to the proper county. A copy of such affidavit shall be served upon the plaintiff, and unless such affidavit be controverted under oath, within five (5) days after such service the court shall order the action transferred to the proper county. If the affidavit be controverted the court shall hear the issue thus presented as upon an application for change of venue, and shall order the action retained in the court in which it is brought, or transferred to the proper county."
"21-104. Change of venue for cause -- Decision reviewable -- If either party to a civil action pending in the superior court shall, after answer has been filed, file an affidavit in the action alleging any of the following grounds therefor, and give five (5) days notice thereof to the opposite party, the venue thereof may be changed as hereinafter provided:
"(1) That there exists in the county where the suit is pending so great a prejudice against him that he can not obtain a fair and impartial trial.
"(2) That the convenience of witnesses and the ends of justice would be ...