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Arizona Conference Corp. of Seventh Day Adventists v. Barry

Supreme Court of Arizona

May 7, 1951

ARIZONA CONFERENCE CORP. OF SEVENTH DAY ADVENTISTS
v.
BARRY, Judge

Alternative writ of prohibition made peremptory.

Terrance A. Carson and Gust, Rosenfeld, Divelbess, Robinette & Linton, all of Phoenix, for petitioner.

Snell & Wilmer, by Edwin Beauchamp, Phoenix, for respondent.

De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.

OPINION

De Concini, Justice.

[72 Ariz. 75] In the Superior Court of Maricopa County, in the cause of Everett and Georgia C. Hampton, et al., plaintiffs, v. Arizona Conference Corporation of Seventh Day Adventists, defendant-petitioner, the complaint charged defendant with violation of the building restrictions contained in the deed to its property in the University Park addition to the city of Tempe, state of Arizona, by the construction of a church where the restrictions provide the premises be used for residential purposes only. Plaintiffs secured an order requiring defendant to show cause why a temporary injunction should not be issued enjoining defendant from proceeding further with the construction of said church.

Page 427

The regularly scheduled hearing on plaintiffs' order to show cause for a temporary injunction was heard and taken under advisement by respondent in the instant case, Honorable Ralph Barry, Judge of the Superior Court. Respondent then issued a written order denying a temporary injunction against petitioner. In an accompanying unsigned memorandum respondent stated that, after having taken a view of the premises involved, he was of the opinion that the use to which the property surrounding that on which petitioner was erecting its church was being put, made it unnecessary to give further force and effect to the deed restrictions against petitioner's property.

Following this order plaintiffs filed a request for change of judge based on an affidavit of bias and prejudice of respondent. Respondent granted plaintiffs' request, but before a new judge was selected, defendant petitioned this court for an alternative writ of prohibition to prevent respondent from assigning the case. As a premise for the writ defendant asserts that it was improper for respondent to grant the request and assign the case on the basis of an affidavit of bias and prejudice which was made after respondent had already ruled on litigated matters. The writ was issued together with an order to show cause why it should not be made permanent. Respondent answered that under Article 6, section 7, of the Arizona Constitution, he has the right to assign a case to another judge; and under Section 21-107, A.C.A. 1939, he must assign it when an affidavit of bias and prejudice is filed against him.

[72 Ariz. 76] Both parties have filed extensive briefs and have raised several technical objections to the timing of the hearings on the motions for change of judge and summary judgment in the court below. Stripping the briefs of their superfluities, we have three basic questions to answer in disposing of this case.

First, was the request for a change of judge based on an affidavit of bias and prejudice timely filed after the court had heard evidence and ruled on the motion for a temporary injunction, under Section 21-107, A.C.A.1939? The answer is, no. One of the best reasoned cases on this point is State ex rel. Shufeldt v. Armijo, 39 N.M. 502, 50 P.2d 852, 855, in which it was said: "We hold that an affidavit of prejudice is timely made if filed and called to the attention of the court before it has made any ruling on any litigated or contested matter whatsoever in the case, either on a motion, demurrer, or plea of the party making the affidavit, or on the motion, demurrer, or plea of any other party to the action, of the hearing of which the party making the affidavit has been given notice, otherwise it is not timely made. * * *"

The instant case falls squarely in that category. Here a hearing was had and a ruling made on a litigated and contested matter. A motion for a change of judge untimely filed need not be granted, Mosher v. Wayland, 62 Ariz. 498, 158 P.2d 654.

Article 6, section 7, of the Arizona Constitution provides: "(Transfer of judges.) -- The judge of any superior court may hold a superior court in any county at the request of the judge of the superior court thereof, and, in case of the disqualification or the inability of the judge ...


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