State v. Superior Court , 82 Ariz. 237 ( 1957 )

UDALL, Chief Justice.

The State of Arizona, at the relation of Honorable Robert Morrison, Attorney General, instituted this original proceeding in certiorari -against respondents, the Superior Court of the State of Arizona in and for the county of Yavapai and Honorable W. E. Patterson, presiding judge thereof, for the purpose of testing the legality of an order entered by respondent court on August 30, 1956, vacating and setting aside a previous judgment of said court dated September 13, 1930. The parties will hereinafter be referred to as petitioner and respondent.

Respondent judge made a return certifying and transmitting to this court the entire record of pertinent files and minutes of the proceedings had before the court.

The steps giving rise to the instant petition for certiorari are as follows:

1. A preliminary hearing was held before a magistrate at Seligman, and thereafter the county attorney of Yavapai County, on September 11, 1930, filed an information against one “Bob Harper” (criminal Cause No. 2854) charging said defendant with the crime of burglary, a felony. At his arraignment the minutes show he was “asked by the court if he desires counsel to represent him and states that he does not desire counsel.” Defendant then entered a plea of guilty and two days later was sentenced by the late Richard Lamson, presiding judge, to serve' not less than one nor more than two years in the state penitentiary.

2. The defendant served thirteen months and eight days of this sentence, whereupon he was discharged from custody with the sentence fully executed.

3. Clyde C. Crosby, also known in the month of September, 1930, as “Bob Harper”, and allegedly being the same person designated as defendant in criminal cause No. 2854, supra, filed a motion in said cause on August 27, 1956, to vacate and set aside the original judgment and sentence imposed against him and to declare the same null and void upon the following grounds, viz.:

“1. This court was, on the date of rendering and entering said judgment and sentence, without jurisdiction to enter said judgment and impose said sentence, and the same are, therefore, a nullity and of no force and effect.

“2. That said judgment and sentence should be vacated and set aside because the defendant, at the time said judgment was rendered and said sentence imposed, was a minor of the age of fifteen (15) years; that said defendant was not represented by counsel and was incapable, because of his age and immaturity, of defending himself against the charge preferred against him, or otherwise asserting his legal rights and immunities in the premises.”

The admitted purpose of the instant proceedings seeking to expunge the prior judgment of conviction was to nullify or remove from a secret indictment returned against Clyde C. Crosby on July 31, 1956, by the grand jury of Multnomah County, State of Oregon, the impact of a prior felony conviction in Arizona which upgraded the offense there charged.

4. The record does not affirmatively show that a copy of this motion was served upon anyone representing the State of Arizona, though presumably the county attorney of Yavapai County knew of it as he appeared at the hearing held on August 30, 1956, but apparently did not resist the granting of such motion. (The record is silent as to when the attorney general, petitioner herein, first learned of these proceedings.)

5. Respondent judge, on the day of the hearing, purportedly entered an order (erroneously labeled a judgment) vacating and setting aside the judgment and sentence theretofore pronounced against Bob Harper upon the grounds (a) the justice of the peace at Seligman was without jurisdiction to hold a preliminary hearing for Bob Harper and to hold him to answer in the superior court on the charge of burglary as he was then a minor of the age of fifteen years, and the proceedings should first have been certified to the judge of the superior court, and (b) the superior court, having held no examination of the minor defendant in chambers — as required by article 6, section 6, Constitution of Arizona A.R.S.— had no jurisdiction to render judgment .or impose sentence. No one representing the State gave notice of appeal from this order.

The Attorney General correctly points out that a minute examination of the “judgment roll” in the “Bob Harper” criminal cause upon its face reveals it to be regular in all respects. The parties here assume diametrically opposed positions. Petitioner asserts, in effect, that respondent court, on the basis of the motion to vacate and set aside, supra, had no jurisdiction to do so; hence, it is claimed the order purporting to vacate the 1930 judgment was entered without jurisdiction and is therefore null, void and of no effect. Thus, the State asks that the 1956 order of respondent court be annulled. On the other hand, respondents, in moving to dismiss the application for writ of certiorari, contend that:

(a) the 1930 judgment was a nullity and, having been entered without jurisdiction, it could be vacated and set aside at any time;

(b) the remedy of certiorari is not available to petitioner because the State had a right under A.R.S. § 13-1712, subd. 5, to appeal from “an order made after judgment affecting the substantial rights of the state.” Reliance is had upon our certiorari statute, A.R.S. § 12-2001, which reads in part as follows :

“The writ of certiorari may be granted * * * ¿n cases -when an jn_ ferior tribunal * * * has exceeded its jurisdiction and there is no appeal, nor, in the judgment of the court, a plain, speedy and adequate remedy.”

The many uniform decisions of this court interpreting the above statute make it clear that certiorari can only be granted to review the legality of a judgment or order of an inferior tribunal when two facts appear: (a) the jurisdiction of the lower court must have been exceeded, and (b) there is neither an appeal nor a plain, speedy and adequate remedy. Hunt v. Norton, 68 Ariz. 1, 5, 198 P.2d 124, 126, 5 A.L.R.2d 668.

Let us first search the record, including the reporter’s transcript, to see whether the respondent court, in entering the order now called in question, exceeded its jurisdiction. Defendant Crosby was moving to set aside a 25-year-old judgment that was ' in all respects regular upon its face and, hence, carried with it a presumption of regularity. Certainly to vest jurisdiction upon the respondent court to entertain such motion would require either specific allegations (not conclusions of law) or sufficient evidence as to wherein the court lacked jurisdiction to enter the original judgment of conviction. The pertinent part of the motion has heretofore been set forth haec verba. It will be noted that juvenility is all that is relied upon. To confer upon the court the power to make an inquiry as to whether the judgment,' valid upon its face, was void required either an allegation that an examination of “Bob Harper” (the asserted minor) was not held in chambers in advance of prosecution as provided in the Constitution of Arizona, Art. 6, Sec. 6, or testimony establishing such fact. The reporter’s transcript of the hearing held before respondent court is devoid of any such evidence; hence, the contrary finding in the lower court’s order is without support in the record. Such omissions deprived the court of jurisdiction. Cf. Carnahan v. Carnahan, 79 Ariz. 371, 290 P.2d 729. We therefore hold respondent exceeded its jurisdiction in vacating the 1930 judgment, and its order purporting to do so is a nullity.

Lastly we consider the question as to whether the State had the right to appeal from this void order. We find there is a conflict in our decisions upon this point. In Peer v. O’Brien, 21 Ariz. 106, 110, 185 P, 644, 645, the following was held:

“The order appealed from having been made by the lower court without jurisdiction, this court will not review it on appeal. * * * ”

A similar holding involving a void judgment was made in the later criminal case of State v. Valdez, 48 Ariz. 145, 151, 59 P. 2d 328. We note that the cases cited as authority for the statement in Peer v. O’Brien, supra, simply do not support its conclusion. The rule in the latter case, State v. Valdez, supra, appears without citations, supported solely by the argument that that which is void is of no effect. This is true in theory but such judgments and orders remain on record with practical effect until subsequently removed by court order.

Neither the O’Brien nor Valdez cases, supra, recognized nor overruled a prior contrary holding, viz.:

“ * * * If the court had no power to make the order at the time it was made, the judgment rendered would be void, and an appeal would lie to review it. * * * ” Spicer v. Simms, 6 Ariz. 347, 350, 57 P. 610, 611.

This latter pronouncement we reaffirm as we find it to be a sounder rule and one in keeping with the prevailing view. See, 2 Am.Jur., Appeal and Error, sec. 36, p. 870, and Phelan v. Superior Court, 35 Cal.2d 363, 217 P.2d 951, 955. (And see the Phelan decision for the point that there should be no distinction made between an appeal from a void order and that of a void judgment.) The O’Brien and Valdez decisions, supra, are, therefore, expressly overruled on this point.

Appeal is not the sole method of attacking a void judgment or order, for a motion may be made at any time to set aside and vacate it in the court where it was rendered. Nevertheless, because the State did .have a right of appeal from the void order entered below, certiorari is not a proper remedy. Hence, the writ of certiorari heretofore issued must be quashed. It is so ordered.

PHELPS and LA PRADE, JJ., concur.