F. L. SHIRE, Petitioner,
THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF GREENLEE, Respondent
ORIGINAL Proceedings in Certiorari.
Order set aside with directions.
Mr. D. V. Mulhern, for Petitioner.
No appearance for Respondent.
Morgan, J. Stanford, C. J., and LaPrade, J., concur.
[63 Ariz. 421] This case comes before us on original application for a writ of certiorari. Pursuant to the writ heretofore issued, the record has been filed, but no appearance has been made by the respondent. The facts upon which the claim is made that the court exceeded its jurisdiction, may be stated as follows:
One Dell M. Potter commenced a civil action No. 1999-B, in the superior court of Greenlee county against the petitioner, in the nature of an action in ejectment to try the title and right to possession of certain mining claims. Following the institution of the action, plaintiff died. More than two years elapsed after his death. No motion was made for substitution as provided in Section 21-530, Arizona Code Annotated 1939. The defendant (petitioner here) moved to dismiss the action under the terms of the statute. While the motion was pending, one Olive Potter filed verified motion to continue hearing on the motion to dismiss upon the grounds that she, Dell D. Potter, Lloyd V. Potter and Ray M. Potter were the heirs at law of the plaintiff and the parties succeeding to plaintiff's interest [63 Ariz. 422] in the suit; that Ray M. Potter was in the military service of the United States, and Lloyd V. and Dell D. Potter were engaged in United States defense work; that neither of such parties were available, and that they were the ones who were informed of the facts involved in the suit. The motion for continuance did not disclose whether the two-year period had expired before Ray M. Potter entered the military service. No application was made for substitution under the provisions of Section 21-530, supra, or otherwise. The trial court thereupon entered an order directing that defendant's motion to dismiss be continued for the duration of the war, and for six months thereafter, within which time the heir in the military service might appear, and if no appearance is made, the cause to stand dismissed within six months after the war.
The sole question presented is the jurisdiction and discretion of the court to enter such order on the showing made.
The section of the statute involved, 21-530, being Rules of Civil Procedure, rule 25(a), so far as material, reads as follows:
"(1) If a party dies and the claim is not thereby extinguished, the court within two (2) years after the death may order substitution of the proper parties. If substitution is not so made, the action shall be dismissed as to the deceased party. The motion for substitution may be made by the successors or representatives of the deceased party or by any party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 (secs. 21-321 -- 21-325) and upon persons not parties in the manner provided in Rule 4
(secs. 21-302 -- 21-312) for the service of a ...