Courtney D. WARD and Hazel C. Ward, husband and wife, Petitioners,
Henry S. STEVENS, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent.
[86 Ariz. 225] Reed, Wood & Platt, Coolidge, and Tom Fulbright, Florence, for petitioners.
Hash & Bernstein, Phoenix, for respondent.
Petitioners, Courtney D. Ward and Hazel C. Ward, husband and wife, instituted this
original proceeding in certiorari against respondent, Honorable Henry S. Stevens, one of the resident superior court judges of Maricopa County, to test the validity of an order entered by him staying a deposition examination.
The procedural steps giving rise to the instant petition are simple and the facts are nowise in dispute. They may be briefly summarized as follows: on May 1, 1956, petitioners, as plaintiffs, filed with the Clerk of the Superior Court at Florence, Pinal County, Arizona, a civil action against N. D. Davis, et ux., and on January 26, 1959, D'Arnold Davis and Thelma Shipley Davis, husband and wife, were joined as defendants in said action. The suit bore Pinal County court number 12451. The Honorable W. C. Truman is the resident judge of the superior court in Pinal County, and at no time had he ever assigned said cause to respondent or any other judge of the superior court in the state of Arizona. On May 7, 1959, attorneys for plaintiffs (petitioners here), availing themselves of Rule 26(a), of the Rules of Civil Procedure, 16 A.R.S., governing Depositions and Discovery, gave due notice of the taking of the depositions of defendants D'Arnold Davis and Thelma Shipley Davis, his wife; the examination was to be held on May 23, 1959, before a court reporter (who is also a notary public) in the Maricopa County courthouse in Phoenix, Arizona.
[86 Ariz. 226] On May 22, 1959, attorneys representing Thelma Shipley Davis--who, it apperas, is a resident of Maricopa County--presented to respondent Stevens, Judge fo Division No. 3, who was then sitting in Maricopa County, a motion for an order staying the taking of her deposition. This pleding bore the title: 'In the Superior Court of the State of Arizona in and for the County of Pinal, Courtney D. Ward, et ux, plaintiffs v. N. D. Davis, et al, defendants, No. 12451.' Apparently no pleading was ever filed or docketed with the Clerk of Superior Court in Phoenix.
Whereupon respondent Judge Stevens, on the same date, without notice to plaintiffs or their attorneys, made an ex parte order staying the depositon examination of defendant Thelma Shipley Davis 'until such time as * * * physical condition of the defendant * * * will allow her to testify in deposition proceedings.'
After an informal hearing held under the provisions of Rule 1, Rules of the Supreme Court, 17 A.R.S., we granted certiorari pursuant to authority granted by Article VI, § 4, Constitution of Arizona, A.R.S., which is implemented by A.R.S. § 12-2001, so as to resolve an important jurisdictional question. This latter section provides that certiorari may only be granted where an inferior tribunal has exceeded its jurisdiction and there is no appeal nor other plain, speedy or adequate remedy. See, Duncan v. Truman, 74 Ariz. 328, 248 P.2d 879. This latter requriment is clearly met here, as the order in question is not appealable under A.R.S. § 12-2101; and certainly no other remedy is readily avaliable. The decisive question therefore is whether the respondent judge, in issuing this order, was acting without or in excess of his jurisdiction in the matter. In this proceeding we, of course, are not concerned with the merits of the motion or the order granted pursuant thereto. If the respondent had no jurisdictional authority to act upon the motion, it is of no importance that the same order might have been granted by a court of competent jurisdiction. Certiorari issues only to test jurisdiction, and not to determine whether it was erroneously exercised. State ex rel. Andrews v. Superior Court, 39 Ariz. 242, 5 P.2d 192.
Rule 30(c), Rules of Civil Procedure--under which the order in question was necessarily predicated--provides that:
'* * * upon motion seasonably made * * * and upon notice and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, * * *.' (Emphasis supplied.)
This provision should be contrasted with the following phraseology of Rule 30(e),
governing situations where the pary taking the deposition is acting in bad faith or in such manner as to annoy, embarrass, or oppress the deponent, we quote:
[86 Ariz. 227] 'At any time during the taking of the deposition, * * * the court in which the action is pending or the court in the county where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of ...