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Shumway v. Farley

Supreme Court of Arizona

February 28, 1949

SHUMWAY
v.
FARLEY

Original proceeding by Deryl D. Shumway against Gordon Farley, as Judge of the Superior Court of the state of Arizona, in and for the County of Maricopa, to prohibit respondent from exercising jurisdiction in adoption of a minor.

Alternative writ of prohibition quashed.

Leslie Parry, of Phoenix, for petitioner.

Francis J. Donofrio, County Atty., and James J. Caretto, Deputy County Atty., both of Phoenix, for respondent.

Aaron Kinney and Nicholas Udall, of Phoenix, for adoptive petitioners.

Charles A. Stanecker and Harold R. Scoville, both of Phoenix, amici curiae.

Udall, Justice. LaPrade, C. J., and Stanford, Phelps, and Deconcini, JJ., concurring.

OPINION

Udall, Justice.

Page 508

[68 Ariz. 160] This is an original proceeding for a writ of prohibition requested by petitioner Deryl D. Shumway seeking to prevent the Honorable Gordon Farley, one of the judges of the Superior Court of the State of Arizona, then presiding in Maricopa County, from continuing to exercise jurisdiction in the matter of the adoption of Carol Shumway, a minor, in cause No. 1738 now pending in said court. The respondent judge, represented by the county attorney of Maricopa County, and the attorneys for the adoptive petitioners have filed a return to the alternative writ of prohibition and a motion to quash. Counsel for the respective parties, as well as attorneys appearing amici curiae, have fully briefed the case which was submitted without oral argument.

[68 Ariz. 161] The facts will be briefly summarized: Deryl D. Shumway and Faye Owens Shumway were married in the year 1938. The sole issue of their marriage was a daughter named Carol Shumway, who was born October 3, 1942. The wife obtained a divorce from her husband by a decree of the superior court of Maricopa County dated February 24, 1945. By its express terms the decree awarded to the mother "the care, custody and control" of their child, with "reasonable visitorial rights" to the father. The latter was ordered to pay $ 30 per month for the support of the child. The natural mother thereafter remarried and on October 1, 1948, she joined with her husband, George G. Doyle III, in filing in the superior court of Maricopa County a petition to adopt the said Carol Shumway who was then six years of age. The petition alleged that the said Deryl D. Shumway "* * * for more than one year next preceding the filing of this petition, has wilfully deserted and neglected and failed to provide proper care and maintenance for the said minor child," which is one of the statutory grounds rendering the written consent of a parent unnecessary. Section 27-204, A.C.A.1939. The father, who was then living in Huntington Park, California, by way of answer to the petition to adopt his daughter, denied that he had deserted and failed to provide for her. He vigorously protested the adoption and refused his consent thereto. When the matter was called for trial on the merits he presented to the court the original divorce decree and moved to dismiss the petition for adoption upon the ground of lack of jurisdiction. This motion was denied following which both adoptive petitioners testified and the motion to dismiss was then renewed and again denied; whereupon the hearing was continued until January 21, 1949, to enable the father to test the jurisdiction of the trial court by applying for a writ of prohibition to this court. The matter is now before us on this record.

The extraordinary writ of prohibition will lie only where an inferior tribunal is acting without or in excess of its jurisdiction. It would be an idle thing for a court to further proceed with a trial after it has lost jurisdiction. Renck v. Superior Court of Maricopa County, 66 Ariz. 320, 187 P.2d 656; Westerlund v. Croaff, 68 Ariz. 36, 198 P.2d 842, and cases cited therein.

In the instant case no question was raised as to the sufficiency of the petition to state the necessary legal grounds for adoption, for as amended the petition practically followed the wording of the statute. While prior to our issuance of the alternative writ the trial court had heard part of the ...


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