185 P. 539 | Ariz. | 1919
The appellant, as plaintiff, commenced an action for divorce against his wife, the appellee, upon the grounds of desertion. The wife duly answered, denying the material allegations of fact, and moved for an order for alimony, attorney’s fees, and costs pending the litigation.
On August 12, 1918, the said motion was heard and denied. Therefore the plaintiff urged an immediate trial on the main case, and the defendant objected. The minutes of. the court thereupon recite as follows:
“By agreement and stipulation of counsel, it is ordered that the testimony of two witnesses be now taken, the same to be read at trial of the cause as depositions. Case set for trial September 14, 1918. In the meantime, defendant may take depositions to present at trial on September 14, 1918, when other witnesses may be heard. ...”
On the thirteenth day of September, 1918, the defendant filed an affidavit for change of judge, under subdivision 4, paragraph 500, Civil Code of Arizona of 1913, alleging on information and belief the bias or prejudice of the trial judge, Sidney Sapp. On the fourteenth day of September, 1918, the defendant did not appear in person or by counsel for trial. The court, on its own motion, examined the affidavit of prejudice on file in the case, and disallowed the application of defendant for a change of judge, and proceeded to hear and consider the case on the merits. Judgment for plaintiff was duly rendered thereon.
On the fourteenth day of March, 1919, the motion was heard before J. E. Crosby, judge of the superior court of Navajo county, the successor to Judge Sidney Sapp, and such hearing resulted in an order granting the motion and setting aside the decree for the reason Judge Sapp was without jurisdiction to render or enter said judgment because the affidavit of prejudice disqualified him from the performance of any acts in the cause after it was filed.
From such order made after judgment rendered, setting aside a decree of divorce in plaintiff’s favor, he has appealed.
The validity of the order vacating and setting aside the divorce decree is the sole matter of inquiry. This motion was filed on February 7,1919, praying that the decree rendered on the fourteenth day of September, 1918, be set aside.
The statute, paragraph 590, Civil Code of Arizona of 1913, requires that the motion to set aside a judgment or decree shall be filed within ten days after the judgment sought to be , vacated was rendered. The court retained no authority over the judgment, so that the judgment could be set aside on motion, at the time the motion was filed. The order setting aside the divorce decree rendered on September 14, 1918, was clearly without authority for that reason.
The refusal of Judge Sapp to grant a change of judge upon the filing of the affidavit of prejudice was in accordance with the decision in Smith v. King of Arizona Min. Co., 9 Ariz. 228, 80 Pac. 357. At the time defendant filed her application and affidavit, the
The defendant ignored this agreement, filed her application for change of judge on September 13, 1918; did not attend the court in person, or by her attorney on the fourteenth' day of September, nor on any subsequent date, and present her application. In the circumstances shown by this record, the trial judge was right in treating the application for change of'judge as coming too late. The court was not required to hunt out voluntarily the motion and grant the application in the midst of a trial and in the absence of the applicant. He was justified in treating the absence of the defendant’s counsel as an abandonment of the motion. If the applicant did not think enough of her motion to urge it, the judge of the court cannot be put in error because he thought no more of the motion than the movant.
The Stephens case, 17 Ariz. 306, 152 Pac. 164, is not in conflict with the rule announced in the Smith case,
At common law the rule was that no judge ought to act where from interest, or from any other cause, he is supposed to be partial. Yet his action in such a case is regarded as an error or irregularity not affecting his jurisdiction, and to be corrected by a vacation or reversal of his judgment. See 1 Freeman on Judgments, 4th ed., § 145, p. 261; Dunson v. Spradley (Tex. Civ. App.), 40 S. W. 327.
The common law has not been changed in this respect by paragraph 500, Civil Code of Arizona of 1913. The statute is one declaratory of the above common-law rule. Consequently, the rule of decision in this respect is that of the common law. Paragraph 5555, Rev. Stats. Ariz. 1913.
Judge Hurlbut, in Oakley v. Aspinwall, 3 N. Y. 547, used the following language, which forcibly states truths that should always be in the minds of judges, to wit:
“The first idea in the administration of justice is that a judge must necessarily be free from all bias and partiality. He cannot be both judge and party, arbiter and advocate, in the same cause. Mankind are so agreed in this principle that any departure from it shocks their common sense and sentiment of justice. ’ ’
An impartial, fair-minded judge is aware of his qualifications to try a cause coming on before the trial begins. If he is disqualified by reason of bias and prejudice arising from his relationship to the parties, from his having been counsel in the case before he became judge, or because he is a witness in the case, no reason ought to prompt him to act as judge. The parties and the public alike do not sane
Whenever the application is supported by an affidavit upon the information and belief of the affiant that, “on account of the bias or prejudice or interest of said judge,” the applicant cannot have a fair and impartial trial, and no fact is stated in the affidavit which disqualifies the judge, then the disqualification is established when the application .and affidavit are filed, if filed before the final trial on the merits commences, or when the judge allows the application and himself declines to act further, even in the midst of the trial.
Any judge would willingly be relieved from trying a case already commenced before him whenever he is informed that either party is averse to trying it before him.
“But although he might be disposed to gratify any such prejudice of either party, he is not at liberty to refuse to try a cause, when reached and ready to be tried, for any reason which the law does not recognize as sufficient.” Fry v. Bennett, 3 Bosw. 200, affirmed 28 N. Y. 324.
The law of this state does not recognize the filing of an affidavit of prejudice on information and belief as sufficient cause for a judge to refuse to continue in the trial of a case already begun when the said affidavit was filed. Smith v. King of Ariz. Min. Co., supra.
In the first place, the right to review a record after the date for making motions for new trials, for arrest of judgment, or for setting aside judgments has expired and no motions of the kind have been made, is invested in this court and not in the court of trial in the first instance. In the second place, as indicated above, we think Judge Crosby came to an erroneous conclusion when he determined that Judge Sapp was without jurisdiction to try the case further when the application for change of judge was filed, after the trial had begun.
The order rendered March 14, 1919, setting aside the decree of September 14, 1918, was made without authority of law, and is therefore vacated as a nullity.
.The cause is remanded, with instructions to strike the order of March 14, 1919, from the record.
EOSS and BAKEE, JJ., concur.