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Emery v. Superior Court of Maricopa County

Supreme Court of Arizona

April 5, 1961

Claud EMERY, Ivan J. Mashek, Nelson F. Huie, James R. Merritt, Dick Smith, Allan R. Perry, L. A. Tanner, Robert P. Van Denburgh and Edward Mathis, Petitioners,
SUPERIOR COURT OF MARICOPA COUNTY, Arizona, and Warren L. McCarthy, one of the Judges of the Superior Court of Maricopa County, State of Arizona, and Bill P. Hatch, D.O., Geoffrey Lawrence, D.O., James Chapman, D.O., D. A. Stilles, D.O., L. A. Nowlin, D.O., H. C. Purtzer, D.o., and C. H. Crotty, D.O., Respondents.

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[89 Ariz. 247] Carl W. Divelbiss, Phoenix, for petitioners.

James J. Cox, Jr., Phoenix, for respondents.

UDALL, Justice.

[89 Ariz. 248] Petitioners (respondents in the mandamus action below) requested this court to issue a writ of prohibition directing respondents The Superior Court of Maricopa County and Warren L. McCarthy, Judge thereof, to desist from enforcing an amended peremptory writ of mandamus issued by that court September 20, 1960 in Cause No. 110678 and to desist from taking any further proceedings in said cause of action. We granted the alternative writ of prohibition in order to more fully consider the problem raised by the petition.

The problem presented for us to resolve is entirely a matter of appropriate pleading in a mandamus action. Because of the difficulty encountered by both the court and counsel below, no doubt somewhat engendered by a lack of Arizona cases dealing with the matter, we deem it advisable to make a rather full statement of the principles which are appropriate to a solution of the present controversy.

The essence of petitioners' theory is that the alternative writ of mandamus constitutes the primary pleading in a mandamus action and is therefore governed and to be construed by the rules governing the primary pleading or complaint in an ordinary action at law. Under this theory petitioners allege that the alternative writ of mandamus issued below was faulty because it failed to state a claim upon which relief could be granted; that it was never properly

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amended to cure this defect; that it was therefore void; and that the peremptory writ issued based on the alternative writ was also void because the foundation (the alternative writ) was void.

Petitioners' theory correctly states the common law governing pleading in mandamus which is followed by a majority of states today. See 55 C.J.S. Mandamus §§ 260, 266, 316, and 318, and cases cited therein. At common law, as set out in the above cited authority, the alternative writ issued summarily serving as both process and pleading. As such it became the primary pleading in the action and stood in the place of the complaint in an ordinary action at law. The petition for mandamus served only as a memorandum from which the court derived its information to give life to the alternative writ. Having spawned the alternative writ, the petition, like the umbilical cord, became functus officio. It seems to have been the rule that the petition could not supplement the alternative writ even by reference. In State v. City of Albuquerque, 31 N.M. 576, 580, 249 P. 242, 245, the court said:

'The relator cites Wampler v. State of Indiana ex rel. Alexander, 148 Ind. 557, 47 N.E. 1068, 38 L.R.A. 829, to the effect that the alternative writ of mandamus may be supplemented by the facts stated in the application in determining whether it is sufficient to withstand a demurrer. This authority supports such contention, but the statement[89 Ariz. 249] of that court in the opinion shows that this practice is local, and by reason of long recognition by the courts apparently it was not thought best to change it. It is not the law of any other jurisdiction, that we can discover, where the writ is held to be the initial pleading after its issuance.'

The soundness of this rule becomes adundantly clear when it is recalled that mandamus is an extraordinary remedy designed to expedite matters where the applicant has an immediate and complete right to the thing demanded (Graham v. Moore, 56 Ariz. 106, 105 P.2d 962; Campbell v. Hunt, 18 Ariz. 442, 162 P. 882) and that the alternative writ issues summarily with no requirement that the petition be served on the respondent. The rule making the alternative writ the primary pleading insured adequate notice to the respondent of the claim against him without possibility of confusion created by multiple documents and permitted the respondent to answer directly and expeditiously without having to concern himself with any pleadings outside the one served upon him.

Although we have never had occasion to rule directly on the matter we have indicated that the answer in mandamus should be to the alternative writ rather than the petition. Burnside v. Douglas School District No. 27, 33 Ariz. 1, 261 P. 629. Since the answer is always to the primary pleading in the action it is clear that we have followed the common law rule making the alternative writ the primary pleading. The question then arises, has this rule been modified by subsequent statutes? We think not.

Pleading in mandamus actions is governed generally by the Rules of Civil Procedure subject to the special rules set forth in A.R.S. §§ 12-2021 through 12-2029. Under the statute, the alternative writ, as at common law, may be summarily issued without notice to the defendant. A.R.S. § 12-2023. Nothing in the statutes requires that a copy of the petition be served with the alernative writ. Thus it will be seen that the provisions for adequate notice are in no way different from that at common law. With no assurance that a copy of the petition will be served with the alternative writ the demands of adequate notice require that the alternative writ contain all the elements of a primary pleading in other actions at law.

Our view that the statute conforms to the common law where the alternative writ first issues is further confirmed by the provisions in A.R.S. § 12-2022, subd. B that the 'alternative writ shall state generally the allegations of the complaint

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against the party to whom it is directed, and command such party * * * to do the act required to be performed, or to show cause * * * why he has not done so.' (Emphasis supplied.) The use of the [89 Ariz. 250] conjunctive 'and' shows the intent that the alternative writ include not only an order directing action but that it also include a statement of the petitioner's claim for relief or his 'complaint against the party to whom it is directed.' Similar statutes in New Mexico (N.M.S.A. § 22-12-6), Oregon (O.R.S. § 34.150) and Oklahoma (12 OS. § 1453) have been construed as following the common law rule as we have set it out. See, e. ...

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