Darrel G. BROWN, Petitioner,
The SUPERIOR COURT OF PIMA COUNTY, and Hon. Robert S. Tullar, one of the Judges thereof, Respondents.
[78 Ariz. 121] John T. Kettlewell, Tucson, for petitioner.
No appearance by respondents.
Martin S. Rogers, Tucson, as frined of ten respondent court.
This is an original proceeding in prohibition directed against the superior court of Pima County and Honorable Robert S. Tullar, the presiding judge of Division No. 3. We issued an alternative writ to test the jurisdiction of the respondent court to exact from attorney Darrel G. Brown (petitioner herein) compliance with an order or rule to pay over moneys by summary contempt proceedings where the relation of attorney and client did not exist between said attorney and the party seeking such relief.
The facts out of which this proceeding arises may be summarized as follows: Monte Seymour, as plaintiff, brought an action for divorce (No. 41148) in the superior court of Pima County, against defendant Mary Louise Sapp Seymour. During the pendency of that action a court order was entered in Division No. 2, directing the plaintiff to pay defendant $75 as attorney's fees and $12.70 as court costs. Later, to enforce compliance with this order, contempt proceedings were initiated against plaintiff and under compulsion he finally paid the $87.70 to Darrel G. Brown (petitioner herein) as attorney for defendant, who paid the court costs and retained the balance of the money. Thereafter the cause was transferred to Division No. 3 where the complaint was amended to state a claim for annulment of the marriage, and after a hearing thereon judgment decreeing annulment was entered. This judgment further ordered, adjudged and decreed:
'* * * 2. That each and all of the temporary orders of this court are hereby set aside and declared of no further force nor effect.
'3. That all property registered in the name of the plaintiff, prior or since the said ceremony of July 19, 1953, which has come into the possession of the defendant, her agent or her attorney, by reason of said marriage ceremony, or dealings between the parties resulting from the said ceremony, is declared to be the property of the plaintiff, Monte Seymour, and that the sewing machine heretofore ordered by the Court to be delivered to Darrel G. Brown, as attorney for the defendant, is ordered returned to the plaintiff.'
It is to be noted that the decree makes no specific mention of moneys theretofore advanced by plaintiff for attorney's fees and court costs, nor is any point here made relative to disposition of the sewing machine.
Petitioner was thereafter served with an order to show cause why he should not be found in contempt for failure to repay to plaintiff the attorney's fees and court costs
amounting to $87.70 theretofore received from plaintiff. Upon denial of petitioner's [78 Ariz. 122] motion to quash the order to show cause for the reason that the court was without jurisdiction to invoke contempt in aid of plaintiff in this respect, this original proceeding was instituted.
Petitioner asserts that since he was not a party to the divorce or annulment proceedings, the respondent had no jurisdiction by contempt proceedings to enforce the purported order entered therein against him, and unless prohibition is granted he has no plain, speedy or adequate remedy to protect himself from the threatened contempt judgment as no appeal lies therefrom.
Respondent, however, contends that contempt was properly invoked in the exercise of the power of the court to control an attorney as one of its officers and further that petitioner has not shown himself entitled to the extraordinary relief sought.
We believe prohibition is proper to test the jurisdiction of the court to enforce this order against petitioner by contempt proceedings. The rule is stated in 42 Am.Jur., Prohibition, Section 24:
'* * * a writ of prohibition is proper, not only in cases where the lower tribunal has no legal authority to act at all, but also in cases wherein such inferior tribunal, although having general jurisdiction over a particular class of cases, has exceeded such jurisdiction in the particular case. Therefore, prohibition may issue to prevent a court from * * * ...