[87 Ariz. 158] Philip S. Malinsky, Tucson, for petitioners.
Robert O. Lesher, Rucson, and Ramon R. Alvarez, Douglas, for respondents in the lower court (no appearance here).
The petitioners, George Pride and Janice Pride, his wife, instituted this original proceeding in certiorari against the superior courts of Cochise and Pima Counties, and Honorable Frank E. Thomas and Honorable Raul H. Castro, the respective judges thereof, for the purpose of testing the legality of certain actions taken by said courts as will hereinafter be set forth.
It appears from the verified petition for writ of certiorari, the allegations of which stand undenied, that on June 18, 1959, the petitioners, as plaintiffs, filed a complaint in Pima County Superior Court for injuries suffered in an automobile collision between their car and a truck driven by defendant Rafael G. Romero, being cause No. 59385. The latter and his wife, Maria Romero, were named as defendants. Thereafter within two days both defendants were personally served with copies of summons and complaint in Tucson, Pima County, Arizona. Defendants, on June 26, 1959, filed a motion to dismiss for improper venue, or for transfer, on the grounds that defendants were residents of Cochise County and that the accident in question happened in that county. However, the supporting affidavit did not attempt to controvert the fact that defendants were both served with process in Pima County. Petitioners filed opposition to the motion to transfer which was supported by a controverting affidavitstating where service was had and asserting that the action, under the statute (A.R.S. § 12-401), was properly brought in Pima County.
A hearing on said motion for transfer was held July 8, 1959, before respondent, Honorable Raul H. Castro--one of the presiding judges of Pima County--at which no new evidence was taken, the parties standing on the affidavits theretofore submitted. Thereupon, respondent Judge Castro entered an order transferring said case to Cochise County Superior Court, where the action was docketed as cause No. 18,800. So as to avoid being in default, petitioners then filed an answer and interrogatories; it is alleged, upon information and belief, that respondent Judge Thomas will proceed to [87 Ariz. 159] rule upon subsequent motions and will try the case, unless he is ordered by this Court to desist from further proceedings pending the review of said order of transfer.
An informal hearing, under the provisions of Rule I, Rules of the Supreme Court, 17 A.R.S., was held September 22, 1959, on the instant application for certiorari. Attached thereto was petitioners' memorandum of points and authorities. Our minutes of that date read:
'Writ of certiorari granted. Petitioner stands on his memorandum and respondents are given 15 days to answer.'
There appears in the record on order for the writ of certiorari to issue, signed by the Chief Justice, as well as the Formal writ signed by the Clerk on September 24, 1959, which writ directs that a full and complete transcript of the record and proceedings in the lower court be certified to this Court on or before October 6, 1959; and in the meantime respondents were ordered to desist from further proceedings in the matter to be reviewed.
It does not appear from our records that any response to the writ was ever filed nor were the records of the lower court certified and transmitted as directed; furthermore no answering memorandum of authorities was submitted by respondents within 15 days, or at all. On this state of the record the petitioners, on January 11, 1960, filed their 'Motion to Submit for Decision', serving a copy thereof on each of the respondents as well as on the attorneys who represented the defendants in the lower court. No response having been filed to this motion the matter was ordered submitted for decision. This inaction on the part of respondents might well be considered as a confession of error, at least on the part of respondent Judge Castro, in ordering that cause No. 59385 be transferred to Cochise County. Nevertheless we shall dispose of the matter on its merits.
There can be no question but that a tort action for damages arising out of an automobile collision is a transitory one. We so held in Friedman v. Friedman, 40 Ariz. 96, 9 P.2d 1015. In Atchison, T. & S. F. R. Co. v. Worley, Tex.Civ.App., 25 S.W. 478, 479, the Texas court said:
'* * * An action such as this, based on personal injuries, is purely transitory, and follows the person of the wrongdoer, wherever he goes; and courts take jurisdiction, wherever he is found, to redress the wrong, without regard to where he or his victim resided, or the injury was inflicted. * * *'
See also 56 Am.Jur., Venue, section 14; Saliba v. Saliba, 178 Ark. 250, 11 S.W.2d 774, 61 A.L.R. 1348, and Loranger v. Nadeau, 215 Cal. 362, 10 P.2d 63, 84 A.L.R. 1264. Cf. Santa Cruz Ranch v. Superior [87 Ariz. 160] Court, 76 Ariz. 19, 258 P.2d 413, as to an action in personam.
The distinction between a transitory cause of action and a local cause of action is set forth in 56 Am.Jur., Venue, § 3, as follows:
'The fundamental rule for determining whether an action is a transitory or a local one is this: If the cause of action could have arisen in any place whatsoever, it is transitory, and unless there is a statute to the contrary an action thereon can be brought wherever the defendant can be found and jurisdiction over this person obtained * * * But if the cause of action is one that in its nature can arise in ...