Denise C. DAVIES, Petitioner,
Honorable H. L. RUSSELL, as Judge of the Superior Court of the State of Arizona, in and for the County of Coconnino, Respondent.
[84 Ariz. 146] Alice M. Birdsall and Leon S. Jacobs, Phoenix, for petitioner.
Stevenson, Brooks & Babbitt, Flagstaff, for respondent.
This case comes to us on petition for a writ of prohibition in which petitioner, Denise C. Davies, seeks to prohibit the Honorable H. L. Russell, judge of the superior court in and for Coconino county, Arizona, from exercising further jurisdiction[84 Ariz. 147] in a divorce action numbered 7503 filed in that county by her husband, Eugene A. Davies, against her on September 10, 1957. Petitioner claims said cause of action was not filed until September 18, but whether it was the one or the other date is immaterial. Petitioner will be hereinafter designated as such; defendant Eugene A. Davies, as 'Davies'; and Judge Russell, as 'respondent.'
The facts are that on August 27, 1957 petitioner filed an action in the Maricopa county superior court against defendant Davies seeking a decree of separation from bed and board from him. She joined with him, as defendant, in that action the Northern Arizona Title Company and asked for an injunction against both defendants restraining them from the alienation of property in which she claimed an interest. On September 3 following, injunctive relief was granted. At the time petitioner filed her action in Maricopa county against Davies she had not resided in that county six months, the time required by statute as a condition precedent to the maintenance of an action for absolute divorce. On September 10 following, defendant Davies filed his action for divorce from petitioner in the Coconino county superior court as above stated. On September 13 both defendants sought a change of venue from Maricopa county to Coconino county. No ruling has been made on this motion. On December 2 defendant Davies, in open court, waived his claim for said change of venue, and on December 12 he filed his answer to petitioner's complaint in the Maricopa county superior court. He filed no counterclaim then nor since. On January 17, 1958 petitioner filed a reply to defendant Davies' answer, and on January 25, 1958 petitioner, having resided in Maricopa county the required statutory period to enable her to maintain an action for divorce in said county, by leave of court, filed a supplemental complaint in which she sought an absolute divorce from Davies.
On November 30, 1957 petitioner filed a motion in the Coconino county superior court to dismiss Davies' action for divorce upon several grounds, chief among which is that the Coconino county superior court had neither jurisdiction of the subject matter of the cause of action nor of either the plaintiff (petitioner) or defendant Davies in that action. The motion to dismiss was denied by respondent on March 21, 1958, and by said order respondent fixed April 3 following, as the date for petitioner to file her answer to Davies' complaint for divorce. Thereupon petitioner invoked the original jurisdiction of this court to prohibit further proceedings in the Coconino county divorce action as above stated.
It is the contention of petitioner that the Coconino county superior court has neither jurisdiction of the subject matter nor of the plaintiff or defendant in the [84 Ariz. 148] divorce action number 7503 in that court. She bases her position upon the ground that she had previously thereto filed her complaint in Maricopa county superior court, cause No. 49855, seeking a decree of separation from bed and board against Davies and that it is the law that where
courts have concurrent jurisdiction, the court first to assume jurisdiction retains it. We believe there is no doubt that such is the law.
'The pendency of a prior action between the same parties for the same cause in a State court of competent jurisdiction works in abatement of a subsequent action either in the same court or in another court of the State having like jurisdiction.' Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796, 798, 31 A.L.R.2d 436.
And it is immaterial that the parties, plaintiff and defendant, are reversed in the two actions. Cameron v. Cameron, supra. The parties are the same in both causes of action herein involved except that in the action in the Maricopa county court the Northern Arizona Title Company is made a party defendant, but solely for the purpose of restraining Davies and the Title Company from alienating property in which petitioner claims an interest. We believe that its joinder for that purpose makes no material change in the real parties in interest, and, that being true, the parties are the same in both cases.
Whether the causes of action in both cases are the same presents a more serious question. It will be remembered that at the time petitioner filed her complaint in cause No. 49855, supra, she had not resided in Maricopa county six months and could not therefore maintain an action for divorce at that time. The court was without jurisdiction at that time to entertain such a complaint by her. The legislature has made a distinction between an action for absolute divorce and an action for separation from bed and board in that it requires that the plaintiff must be a resident of the state for one year and of the county for six months immediately preceding the filing of a complaint for absolute divorce, but it requires no specific period of residence in the county in order to file an action for separation from bed and board. Ordinarily the true test for determining whether the parties and causes of action are the same for the purpose of abatement by reason of the pendency of a prior action is:
'* * * Do the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded?' Cameron v. Cameron, supra.
It is obvious that the relief demanded in the two causes of action is entirely different. In petitioners' original complaint she seeks only a separation from bed and board and, we presume, personal [84 Ariz. 149] support. At the time she filed her complaint and until approximately five months thereafter, she could not maintain an action for absolute divorce im Maricopa county. She could have maintained one thereafter only by either filing an original complaint for divorce or by filing, with leave of the court, an amended complaint which, of course, would have set up an entirely new cause of action and as such would not have related back to the date of filing the original complaint but would have dated only from the date it was filed.
As further evidence of the difference in the relief demanded in the two actions we point out the fillowing. After a decree of absolute civorce, the bonds of matrimony are forever terminated, except by remarriage. After a decree of separation from bed and board, the parties may reconcile their ...