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Mayberry v. Duncan

Supreme Court of Arizona

April 27, 1949

MAYBERRY
v.
DUNCAN

Appeal from Superior Court, Navajo County; Don T. Udall, Judge.

Proceeding by A. W. Mayberry, for himself and all other persons similarly situated, for a writ of certiorari to review proceedings of John A. Duncan, as superintendent of the state department of liquor licenses and control in the issuance of a license to Robert Hunsick, Jr., and transfer thereof to Ben. G. Armer. From the judgment, petitioner appeals.

Reversed with directions.

P. H. Brooks, of Winslow, for appellant.

Evo DeConcini, Atty. Gen., and Chas. D. McCarty, Asst. Atty. Gen., for appellee.

Blake, Superior Judge. Udall, Stanford and Phelps, JJ., concur. LaPrade, C. J., not participating. DeConcini, Justice, former Attorney General, announced his disqualification and the Honorable Benjamin Blake, Judge of the Superior Court of Graham County was called to sit in his stead.

OPINION

Blake, Superior Judge.

[68 Ariz. 282] This is an appeal from a judgment of the superior court of Navajo county affirming the issuance of a liquor license to one Robert Hunsick, Jr., and the subsequent transfer of said license to Ben. G. Armer.

The action which was instituted by A. W. Mayberry, for himself and all other persons similarly situated, petitioned the superior court of Navajo county for a writ of certiorari seeking a review of the proceedings of John A. Duncan, as Superintendent of the State Department of Liquor Licenses and Control, in the issuance and transfer of said license. The parties will be hereinafter referred to as appellant and appellee.

Writs were issued directing the Navajo County Board of Supervisors and appellee to certify to the court all records pertaining to the license in question. Later further orders for additional returns were issued and supplemental returns were made and a hearing was then had to determine whether appellee had acted without or in excess of his jurisdiction in issuing the original license and approving the subsequent transfer.

Page 365

First we dispose of certain contentions raised by appellee. It is urged that appellant is barred by laches from maintaining this action. Clearly there is no merit to this plea as the application for a writ of certiorari was made within two months from the date of the order granting the transfer of the license to Armer, and only slightly more than ten months from the date of the issuance of the original license to Hunsick.

In the proceedings before the lower court the appellee moved to quash the writ of certiorari for the reason (among others) that Mayberry "is not a party beneficially interested or party to the proceedings." This motion was denied. The trial court made no finding of fact on any of the issues presented and the judgment finally entered does not disclose the basis upon which the action of the superintendent in the original issuance of the liquor license to Hunsick and the subsequent transfer to Armer was affirmed. When the record on appeal reached this court the appellee moved to dismiss the appeal upon the grounds: (a) that appellant Mayberry was not a "party beneficially interested" within the meaning of section 28-102, A.C.A.1939, and therefore was not entitled to relief by certiorari; (b) that said appellant is not a "party aggrieved" within the meaning of section 21-1701, A.C.A.1939, and hence is not entitled to maintain this appeal. We fully considered the matter and on April 8, 1948, entered a minute order (without a formal [68 Ariz. 283] opinion) denying said motion to dismiss the ...


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