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In re Adoption of Wilcox

Supreme Court of Arizona

March 14, 1949

In re Adoption of WILCOX. WAGGENER et al.
v.
WILCOX et ux

As Corrected on Denial of Rehearing April 5, 1949.

Appeal from Superior Court, Pima County; J. Mercer Johnson, Judge.

Proceeding in the matter of the adoption of Walter Eugene Wilcox, Jr., a minor, by Walter Eugene Wilcox, Sr., and Marguerite Wilcox, his wife, opposed by W. H. Waggener, Lona Waggener, his wife, and Walter Eugene Wilcox, Jr., acting by and through his guardians and next friends, W. H. Waggener and Lona Waggener, his wife. From an interlocutory decree for petitioners, opponents appeal.

Appeal dismissed.

Fred W. Fickett, William S. Dunipace and Robert S. Tullar, all of Tucson, for appellants.

Clarence E. Houston and Darrel G. Brown, both of Tucson, for appellees.

Udall, Justice. Arthur T. LaPrade, C. J., and Stanford, Phelps and DeConcini, JJ., concur.

OPINION

Udall, Justice.

[68 Ariz. 210] This is an appeal from an interlocutory order in a proceeding initiated by Marguerite Wilcox joined by her husband, Walter Eugene Wilcox, Sr., the natural father, for the adoption of Walter Eugene Wilcox, Jr., a minor of the age (at time of hearing) of eleven years. These adoptive petitioners are hereinafter termed appellees. The natural mother and former wife of Walter Wilcox, Sr., is deceased. The maternal grandparents, W. H. Waggener and Lona Waggener, his wife, having unsuccessfully resisted in the lower court the petition to adopt, have brought their appeal to this court, and they have been joined by the minor acting by and through his guardians and next friends. They will be referred to as appellants.

By reason of the disposition made of the appeal, we consider it unnecessary to either recite further facts or state in detail the legal issues presented in the briefs.

After the appeal was filed the appellees made a timely motion to dismiss contending that there was no statutory right of appeal from an interlocutory order in an adoption case. By a minute order entered on May

Page 169

12, 1948, this court granted the motion. Pursuant to a motion for a rehearing, we reconsidered our action, and relying in part upon the case of In re Webb's Adoption, 65 Ariz. 176, 177 P.2d 222 (wherein we considered an appeal from a similar interlocutory [68 Ariz. 211] order upon its merits, the question however of a right of appeal being neither raised by the parties nor passed upon by the court), we on June 18, 1948, improvidently vacated the previous order, thus reinstating the appeal. At the oral argument counsel for both appellants and appellees urged that for the future guidance of the bench and bar we expressly pass upon this procedural question in our formal opinion. We were agreeable to this suggestion and have made an intensive study of appellants' right of appeal from the order in question. For the reasons hereinafter stated we have reached the conclusion that our original action was correct, that there is in this jurisdiction no right of appeal from an interlocutory order in an adoption matter.

The contentions of the parties raised upon the motion to dismiss as to the appealability of the interlocutory order can be simply and briefly stated. Appellees maintain that the Arizona statutes fail to contain any provision for an appeal from an interlocutory order in adoption cases, and as the right of appeal is a creature of statute and appeals can be taken only in the time and manner provided by law, In re Sullivan's Estate,38 Ariz. 387, 300 P. 193, there can be no appeal from such an order. Appellants, on the other hand, take the position that our statutes permit this appeal, placing reliance upon certain subsections of the general appeal statute, section 21-1702, A.C.A.1939, and upon section 27-209, A.C.A.1939. This latter section specifically provides for an appeal from a decree of adoption, and under the pronouncement of this court speaking through Justice Ross in Sargent v. Superior Court,28 Ariz. 605, 238 P. 387, 388, we must find any authorization for an appeal in adoption cases within the confines of this section alone. The court stated in that case: "* * * An adoption proceeding is a statutory one, and is governed by the terms of the statute providing for it. (Citing authorities.) If our adoption ...


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