[78 Ariz. 181] Darrel G. Brown, Tucson, for petitioner.
William C. Truman, Florence, in pro. per., and W. Shelley Richey, Douglas, for respondents.
This is an original proceeding in prohibition initiated by John Pintek (et al.), as petitioners, directed against the Superior Court of the State of Arizona in and for the County of Cochise and Honorable William C. Truman, of Florence, Arizona, presiding therein. We issued an alternative writ to test the right and propriety of Judge Truman to preside in the trial of two separate but related matters, the one a probate estate matter and the other a guardianship proceeding.
We expressly held in the case of Conkling v. Crosby, 29 Ariz. 60, 66, 239 P. 506, 508, that '(p)rohibition is available to challenge the qualification of the judge as well as the jurisdiction of the court.'-hence there is no question as to petitioner's right to test this matter by this method.
At the outset it should be pointed out that section 38-2007, A.C.A.1939, of the Probate Code provides that procedure in civil actions are applicable to and constitute the rules of practice in handling decedents' estates. In turn, section 42-143, A.C.A.1939, specifies: '(t)he provisions relating to the estate of decedents, so far as they relate to the practice in the superior court apply to guardianships.'
[78 Ariz. 182] Alvena M. Stover died testate on July 9, 1952, at Douglas, Arizona, leaving an estate in Cochise County and two surviving adopted children, viz.: John Anthony Stover, aged 13 years and Mary Ellen Stover, aged 11 years. By the terms of her non-intervention will a trust as to all her property was created with the two minors as the cestuis que trustent. The petitioner here, John Pintek, a Bisbee attorney, was named both executor and trustee, and in addition was nominated by decedent as guardian of the person of said minors. Decedent's will was duly admitted to probate on August 5, 1952 and letters testamentary issued to petitioner and he qualified as such executor. On the same day in the guardianship proceedings petitioner was appointed and qualified as guardian of the person and estate of said minors. No bond was required in either matter.
For the sake of clarity, inasmuch as the procedural steps in the estate and guardianship matters are dissimilar, we shall treat them separately.
In the Matter of the Guardianship of John Anthony Stover and Mary Ellen Stover, Minors, Superior Court No. 6550.
Karl M. Stover, a brother of Alvena M. Stover, deceased, on August 30, 1954 filed a verified petition for removal of John Pintek as guardian, and as grounds therefor alleged serious derelictions of duty and other misconduct on the part of the guardian. Honorable Gordon Farley, a visiting judge from Santa Cruz County, entered an order directing the guardian to immediately render a full and complete account and report and in addition cited him to appear and show cause on September 2, 1954, why he should not be removed as guardian of said minors. (On the same date a similar order, returnable at the same time, was entered upon a petition of similar import filed in the estate matter.)
For the purpose of this decision we shall assume, without deciding, that Karl M. Stover had a legal interest in these matters sufficient to entitle him to petition for the relief sought.
At the time appointed, with Judge Farley presiding, there appeared in this matter the following named parties: Karl M. Stover and his attorney, W. Shelley Richey; Guardian John Pintek and his attorney, Darrel G. Brown; Attorney John W. Ross who purportedly (though without court sanction) was representing the minors. Attorney Ross filed a motion to consolidate the two matters (No. 6550 and No. 6551), which motion was denied and he then filed an affidavit of bias and prejudice directed against Judge Farley. The following colloquy thereupon took place:
'The Court: And Mr. Ross, will you indicate your relationship in this matter?
'Mr. Ross: I am representing the minor children of the deceased.
'The Court: The minors or the guardian for the minors?
[78 Ariz. 183] 'Mr. Ross: No. I represent the ...