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In re Adoption of West

Supreme Court of Arizona

March 10, 1960

In the Matter of the ADOPTION OF Tony Allen WEST, a Minor.

[87 Ariz. 235] Francis J. Brown, Phoenix, for petitioner.

Klass & Welliever, Phoenix, for Mearl F. West and Francis J. Donofrio, Presiding Judge of Maricopa County Juvenile Court.

JOHNSON Justice.

This is an original proceeding for a writ of prohibition requested by petitioner Anell Carter seeking to prevent the Honorable Francis J. Donofrio and the Honorable Lorna E. Lockwood, judges of the Superior Court of Maricopa County from exercising any jurisdiction in the matter of the adoption of Tony Allen West, a minor child

[87 Ariz. 236] The petition for the writ of prohibition filed reads as follows:

'In the Matter of the Adoption of Tony Allen West, A Minor.

Petition for Application of Writ of Prohibition against Superior Court of Maricopa County Acting Without Jurisdiction

'I. That heretofore Anell Carter, petitioner in Cause No. 5676, for an adoption of said minor child, namely, Tony Allen West

Page 126

'II. That pursuant thereto said petitioner caused to be served service as required by the Arizona statutes.

'III. That after a hearing on said petition Judge Lorna E. Lockwood, Division 5, of the Superior Court, did enter an order dismissing said petition, and did further enter an order directing that said child should be turned over to Mearl F. West, the natural father and the respondent in said action.

'IV. That pending the time of the entering of the order a writ of habeas corpus has been entered, a notice of appeal has been filed, a bond on appeal has been filed, said bond being a supersedeas bond, as set forth in and by virtue of Section 62(d), Rules of Civil Procedure [16 A.R.S.], Arizona Superior Court, and as substantiated by the following case law: [37 Ariz. 322], 294 P. 837, Gotthelf v. Fickett, as set forth therein.

'V. That this petitioner has no speedy or adequate remedy at law or otherwise to stop Judge Lorna E. Lockwood, Judge Francis Donofrio, or any other Judge in the State of Arizona of whom Mr. Robert Welliever may feel free to call upon to enter an additional or supplemental order to the order already entered in this case.

'Wherefore, petitioner prays that this court enter a writ of prohibition, commanding the Superior Court of the State of Arizona, consisting of Francis Donofrio, Lorna E. Lockwood, or any and all other judges, to cease and desist from entering any further proceedings in said action, pending further order of this court.'

The petition did not make the Superior Court of Maricopa County or any of the judges thereof parties to the action as respondents, nor were either of the judges mentioned in the petition served with notice of the application for a writ of prohibition. Counsel representing the natural father of the minor child in the trial court, did appear at the time of the informal hearing, which resulted in the issuance of an alternative writ of prohibition. Counsel representing the natural father and the Maricopa County Juvenile Court thereafter filed a response to the petition for a writ of prohibition contending among other defenses that there is a want of sufficient facts alleged in [87 Ariz. 237] the petition to warrant the relief sought or vest jurisdiction in this court.

It is fundamental that the extraordinary writ of prohibition will lie only where an inferior tribunal is acting without or in excess of its jurisdiction. Shumw ...


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