[85 Ariz. 301] Anthony T. Deddens, Bisbee, for petitioner.
Kramer, Roche, Burch & Streich, and Dan Cracchiolo, Phoenix, for respondents.
PHELPS, Chief Justice.
The petitioner, Paul Sulger, instituted this original proceeding in certiorari against the Superior Courts of Cochise and Pima Counties, Frank E. Thomas and Lee Garrett, judges and clerks thereof respectively, for the purpose of testing the legality of the action taken by said courts as will hereinafter be set forth. The clerks of the respective courts were improperly joined as parties defendants and are hereby ordered dropped from the title hereof.
On August 2, 1958, petitioner filed a complaint for damages for slander against Joseph U. Cracchiolo, defendant, in the Superior Court of Cochise County. In his complaint the petitioner alleged that:
'On or about the 12th day of June, 1958, at Sierra Vista, Cochise County, Arizona, the defendant spoke and directed, in the hearing of sundry persons, of and concerning the plaintiff certain false and slanderous words substantially as follows: (then followed slanderous words) * * *.' (Emphasis supplied.)
On August 15, 1958, defendant Cracchiolo filed his application and affidavit for change of venue of said action to Pima county. The application stated that (1) the defendant is a resident of Pima county, (2) defendant is engaged in the active practice of law in Pima county, and to have the action heard in Cochise county would materially affect his practice and the duty he has to his clients who are located in Pima county, (3) it would create an unbearable hardship on defendant. In the affidavit defendant swears that he is a resident of Pima county and practices law there.
Defendant requested oral argument and the application for change of venue was heard by the Superior Court of Cochise County, Judge Frank E. Thomas presiding, on September 8, 1958, at which hearing neither party presented any evidence. On September 9, 1958, Judge Thomas, one of the respondents herein, granted the application and ordered said action transferred to the Superior Court of Pima County. In accordance with said order the action was transferred to and received by the Superior Court of Pima County. The Superior Court of Pima County, Judge Lee Garrett respondent presiding, proceeded to hear certain motions presented by the defendant, which are not material to the case at hand. It should be noted, however, that to date of [85 Ariz. 302] instituting these proceedings the case had been pending and no answer has been filed.
Based on these facts Paul Sulger, on September 23, 1958, petitioned this court for a writ of certiorari contending that the order of the Superior Court of Cochise County was and is in excess of the jurisdiction vested in said court and that there is no appeal from said order and petitioner has no other plain, speedy or adequate remedy. On October 6, 1958, a writ of certiorari issued commanding that respondents return to this court all records, proceedings, pleadings and documents filed in the case of Paul Sulger, plaintiff, v. Joseph U. Cracchiolo, defendant, and to desist from further proceedings in the matter to be reviewed. Subsequent to
October 6, 1958 respondents returned to this court said records enumerated above.
Petitioner contends that the record of the case in the Superior Court of Cochise County shows that the action for slander was filed in the proper county under the law and therefore the Superior Court of Cochise County, and Judge Frank E. Thomas, respondent, were without jurisdiction to transfer the case from Cochise county to Pima county because there was no evidence before the court or respondent Thomas upon which jurisdiction to transfer the cause could be based.
A.R.S. § 12-401 provides, 'No person shall be sued out of the county in which he resides, except: * * *'
'10. When the foundation of the action is a crime, offense or trespass for which an action in damages may lie, the action may be brought in the county in which the crime, offense or trespass was committed or in the county in which the defendant or any of the several defendants reside or may be found, * * *.' (Emphasis supplied.)
A.R.S. § 12-404 provides:
'A. If an action is not brought in the proper county, the court shall nevertheless have jurisdiction and may hear and determine the action unless the defendant, before expiration of the time allowed to answer, files with the clerk of the court in which the action is brought an affidavit of the defendant, his agent or attorney, stating that the county in which the action is brought is not the proper county and stating the county of ...