[83 Ariz. 329] Duane Bird and Thomas L. Hall, Nogales, and Evans, Kitchel & Jenckes by Jos. S. Jenckes, Jr. and Earl H. Carroll, Phoenix, for appellant.
Nasib Karam, Nogales City Atty., for plaintiff-appellee.
James V. Robins, Nogales, for defendants-appellees.
UDALL, Chief Justice.
The sole question presented on this appeal is whether the trial court erred in
denying appellant Del Mitchell the right to intervene in an action filed by the City of Nogales, plaintiff, against defendants, the Mayor and Members of the Board of Aldermen of said city; and R. W. Beck and Associates.
The events giving rise to the instant appeal are as follows: defendants as the governing body of the City of Nogales adopted an emergency resolution declaring it was immediately necessary that a report and survey of gas and electric services, business and facilities of Citizens Utilities Company be made by a competent firm of engineers in order that the city might undertake a program to insure utility service at reasonable rates or in lieu thereof, that the property and facilities of such company be acquired by the city. Later R. W. Beck and Associates, a Washington co-partnership, were employed under a written contract to make such a survey at an agreed fee of $5,500. Appellant Del Mitchell is the local manager of the Citizens Utilities Company, and is a taxpayer though not a resident of the City of Nogales. Availing himself of the appropriate provisions of the City Charter (Ch. IX, section 95, 96, 97) he demended of City Attorney Nasib Karam that he institute an action in the name of the city against the Mayor and Board of Aldermen and the Beck Company to enjoin the payment of any moneys under said contract to R. W. Beck and Associates, or in the event that moneys have been paid thereon to recover same with 20% additional, plus [83 Ariz. 330] interest and costs. The city attorney within the allotted time filed such an action asserting numerous grounds why the contract might be unenforceable, and at the hearing obtained permission of court to amend the complaint by including additional grounds incorporated in appellant's proposed complaint in intervention. Apparently none of this satisfied appellant Mitchell for at this same hearing he filed a motion to intervene attached to which was his proposed complaint in intervention presenting-inter alia-the identical legal questions raised in plaintiff's amended complaint. Among the matters prayed for was a reasonable attorney's fee not to exceed 40% of the amount recovered or saved to the city, as the case may be. The proposed complaint in intervention doubtless is in effect the same as it would have been had the city attorney refused appellant's demand to sue.
The action came on for hearing on April 28, 1956, and appellant's motin to intervene with proposed complaint in intervention were met by objections thereto on the part of both plaintiff and defendants. After plaintiff amended his complaint to present most of the questions of law and fact found in appellant's proposed complaint, the motion to interven was denied. However, in making such ruling the court stated:
'I think that his (appellant's) complaints in the petition have all been met by amendments, except the complaint that he may be inadequately represented. * * *
'* * * even if the proposed intervenor were not allowed to intervene he certainly, his attorney, as amicus curiae, could sit in the trial and ask questions and help to see that te evidence is all presented and file briefs, if briefs are required * * *.'
The trial date was then postponed for a week at which time, upon learning of this appeal, the trial date was vacated and the case continued indefinitely. This appeal then followed.
A motion to dismiss the instant appeal on the ground that the matters here involved were moot, because the city fathers had subsequently adopted a resolution cancelling the agreement with R. W. Beck and Associates, was denied by us in order that the issues here presented might be determined. It does appear, however, that no moneys were paid to the engineering firm under the resolution under attack.
The assignments of error in substance are (1) appellant had an absolute right to intervene, and (2) if not, then permissive
intervention should have been granted. All in accordance with rule 24, subdivisions (a) and (b), Rules of Civil Procedure, 16 A.R.S.
[83 Ariz. 331] As heretofore stated, plaintiff included in his amended complaint all of the pertinent matters found in the complaint in intervention. The only new matter under appellant's contention as to intervention as of 'right' is the ...