(dissenting) :
An excursion into the case law of other states is really unnecessary. Arizona has adopted the rule that an affidavit of disqualification is timely, unless evidence has been received “which of necessity is to be used and weighed in deciding the ultimate issues.” Marsin v. Udall, 78 Ariz. 309, 279 P.2d 721 (1955). A simple application of that rule requires that this case be reversed and remanded for a new trial.
The case had been remanded and scheduled for a new trial. On the morning of trial, defense counsel learned that the judge scheduled to preside at the new trial had been taken off and the case had been reassigned to the judge who had presided at the previous trial. At that time defense counsel attempted to disqualify the trial judge.
No evidence had been received. Indeed, the trial had not begun. Certainly the evidence which had been received in the previous trial would not of necessity be used and weighed in deciding the ultimate issues. The new trial must stand or fall on its own. It proceeds in all respects as if there had been no former trial. 17 A. R.S. Rules of Criminal Procedure, Rule 314; Pacific Guano Company v. Pinal County Land Company, 1 Ariz.App. 34, 399 P.2d 122 (1965).
Rule 198 of the Rules of Criminal Procedure provides that “[n] either the state nor any defendant in the same action may make more than one application for change of judge.” (emphasis supplied) If a peremptory disqualification is limited to the first trial, why does the rule restrict the number of disqualifications to the broader unit “action”? I agree with the majority’s construction of Pappa v. Superior Court of Los Angeles County, 54 Cal.2d 350, 5 Cal.Rptr. 703, 353 P.2d 311 (1960), as to a retrial being the same “action.”1
The New Mexico rule adopted by my colleagues, that “an affidavit disqualifying the trial judge must be made on a belief of prejudice theretofore entertained, and not on any subsequent discovery of such belief of prejudice resulting from an adverse ruling” is discordant with the Arizona view of peremptory disqualification. I have no *265doubt that had the trial judge felt biased or prejudiced in the least, he would have disqualified himself. “It is not the bias and prejudice which works his disqualification, but the mere filing of the affidavit in time, even though the judge against whom it is aimed be entirely free from either.” Hordyk v. Farley, 94 Ariz. 189, 382 P.2d 668 (1963).2
Though the loss of judicial time and effort which would be required by a new trial is regrettable, I believe the judgment should be reversed and the cause remanded for a new trial.
. In Pappa, a motion for disqualification was denied since the movant’s co-defendant had already exhausted the single peremptory disqualification per side allowed under the California statute.
In a co-defendant situation like Pappa, it is possible that application of our Rule 198 would require a different result since the limitation of one application per action is as to the state or any defendant.
. For a discussion on the right of litigants not to have their case adjudicated repeatedly before the same judge,,.see 3 Howard Law Journal 228 (1957).