[83 Ariz. 51] Albert H. Mackenzie and Minne & Sorenson, Phoenix, for petitioner.
Robert Morrison, Atty. Gen., and Mangum, Christensen & Anderson, Flagstaff, for respondents.
Petitioner, Bessie May Siler, initiated this original proceeding by filing a petition for two writs of certiorari to issue respectively to the Superior Court of the State of Arizona, in and for the County of Coconino (Superior Court), Honorable H. L. Russell presiding, and to John A. Duncan, State Superintendent of Liquor Licenses and Control (Superintendent), commanding the former to certify the Superior Court record in civil cause No. 6825, and the latter to certify to this court his file and records concerning a certain Series [83 Ariz. 52] 6 spirituous liquor license (liquor license) registered in the name of Bessie May Siler.
The writs were issued and returns made, and from the record now before us the following appears: On December 16, 1943, petitioner leased from respondent Black the premises located at 24 East Santa Fe Avenue, Flagstaff, a building which housed what was then known as Black's Bar and Cocktail Lounge, the B. & M. Cafe and a barber shop. The last paragraph of the lease states, in part, that the lessee shall not sell or transfer the liquor license in question without the written consent of respondent Black, and upon termination of the lease the petitioner, as lessee, shall transfer the liquor license to respondent Black. On the same day a 'person-to-person' application to transfer the liquor license was executed by respondent Black, filed with the Department of Liquor Licenses and Control (Department), and a liquor license was duly issued to petitioner. On the reverse side of the application to transfer the license an agreement was entered into wherein petitioner agreed to comply with the the terms of the lease with respondent Black, as lessor, to keep the license in full force and effect, and not to transfer the license from the premises or to any person without the written consent of respondent Black.
On June 1, 1944, respondent Black conveyed title to Hays N. Nance and Julia M. Nance, his wife, by warranty deed, to the building in which the leased premises were located, and assigned to them the lease with petitioner by a written assignment of leases which contained no reservation of any interest in the liquor license issued in the name of petitioner. The pertinent portion of the assignment of leases recited that it was made subject to all the terms and conditions of the leases and which the assignees assumed and agreed to perform.
Hays N. Nance and Julia M. Nance, by written lease dated June 13, 1947, leased the premises to petitioner for a term of ten years, commencing September 1, 1947, which provided, inter alia, that the liquor license held by petitioner shall not be sold or transferred without the written consent of the Nances, and upon termination of the lease petitioner shall assign the liquor license to the Nances or to a person they designate.
Respondent Black, on October 20, 1955, without notice to petitioner, filed with the Department his application to transfer the liquor license to himself. Paragraph 6 of the application, requiring the name of the owner of the license, set forth the name of petitioner as lessee. Also inserted in the application was a reference to the restriction as to the transfer of the liquor license contained in the lease dated December 16, 1943, between respondent Black, as lessor, and petitioner, as lessee. On said date of October 20, 1955, petitioner was [83 Ariz. 53] the registered owner of said license, and the said application to transfer the liquor license did not anywhere bear the signature of petitioner requesting or acquiescing in any such transfer. Thereafter, the Superintendent disapproved said application for transfer filed by respondent Black. A timely appeal, civil cause No. 6825, was taken to the Superior Court. Neither petitioner
nor Hays N. Nance are named as a party in the notice of appeal, nor was any service of a copy thereof ever made upon either of them. On January 9, 1957, a stipulation of facts was filed in civil cause No. 6825, which had been drafted and prepared by the attorneys representing the Superintendent and respondent Black. The stipulation of facts briefly recited the facts above set forth, but in addition stated Hays N. Nance was, on June 1, 1944, and at all times up to the date of the stipulation of facts, a bona fide resident and citizen of the State of California. The judgment and order in civil cause No. 6825 was entered on January 15, 1957, at a hearing in the Superior Court, based upon the stipulation of facts, which in substance ordered the Superintendent to transfer the liquor license, then in the name of petitioner, to the respondent Black.
The record of the Superior Court further shows that on January 14, 1957, the petitioner filed a motion for consolidation seeking an order consolidating civil cause No. 6825 and civil cause No. 6836. Respondent Black filed a complaint in civil cause No. 6836, praying for a declaratory judgment determining the rights of respondent Black, petitioner, and Hays N. Nance, in and to the liquor license in question, which cause is still pending. Petitioner, in civil cause No. 6836, filed an answer and counterclaim. No ruling or order was made on the motion for consolidation of civil causes Nos. 6825 and 6836. On January 17, 1957, petitioner filed in civil cause No. 6825, a motion to intervene as defendant, combined with motion to set aside judgment. On January 29, 1957, respondent Black filed his response and a hearing was had on the motion on that date. The Superior Court, on February 13, 1957, denied the petition to intervene and the motion to set aside judgment.
It appears from an affidavit made by Wm. W. Stevenson, attorney for petitioner, on January 17, 1957, that he had actual knowledge of the appeal to the Superior Court in January or February, 1956.
We will consider petitioner's first assignment of error, which states the court erred in making its judgment and order for the reason that it did not have before it an indispensable party, namely, the registered owner of the license in question.
We have held a liquor license in this state is a property right with a peculiar and special value. Duncan v. Truman, 74 Ariz. 328, 332, 248 P.2d 879; Hom Moon Jung v. Soo, 64 Ariz. 216, 167 P.2d 929. [83 Ariz. 54] We hold petitioner had a valuable property right in the liquor license in question.
Petitioner urges she was an indispensable party, and by reason of the failure to serve her with a copy of the notice of appeal or to make her a party to said cause, that the Superior Court had no jurisdiction to enter the judgment and order of January 15, 1957, ordering, in substance, the transfer of the liquor license in question to respondent Black. Paragraph 7 of Rule 12(b), Rules of Civil Procedure, 16 A.R.S., states that failure to join an indispensable party may be asserted in a responsive pleading, or may at the option of the pleader be made ...