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
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
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. Shumway v. Farley, 68 Ariz. 159, 203 P.2d 507.
The facts set forth in the petition for the writ of prohibition furnish the foundation upon which jurisdiction depends. From the petition it must appear, by clear and distinct allegations, in what respect the inferior tribunal is acting without or in excess of its jurisdiction. 73 C.J.S. Prohibition § 26; 42 Am.Jur., Prohibition, Section 42.
In passing upon the sufficiency of a petition for a writ of prohibition we said in Loftus v. Russell, 69 Ariz. 245, 212 P.2d 91, 95:
The petition upon which the alternative writ was issued falls far short of being sufficient in alleging that the Superior Court of Maricopa Division 5, or Honorable Lorna E. Lockwood, the presiding judge thereof, acted without or in excess of its jurisdiction. The only allegation is that said presiding judge dismissed a petition for the adoption of Tony Allen West, a minor, and entered an order directing that said child should be turned over to its natural father. While the trial court may have erroneously dismissed the petition for adoption, (a question which we do not decide) such order is not reviewable by prohibition, as the parties have an adequate remedy by appeal.
There are insufficient facts alleged in the petition showing that the trial court exceeded its jurisdiction in awarding the custody of the minor child to the natural father after the adoption proceedings were dismissed.
The order dismissing the petition for adoption and placing custody of the minor child with its natural father was entered by the trial court on the 23rd day of November, 1959 and on January 7, 1960, petitioner filed a purported supersedeas bond, for the apparent purpose of staying the order of the court.
We held in Gotthelf v. Fickett, 37 Ariz. 413, 294 P. 837, that whenever a supersedeas bond is given, this by statute destroys the right of the court to make any further order whatever in the proceedings superseded. It is clear from the record in the instant case that Judge Lockwood did not enter any further or other orders in the adoption proceedings after the order of dismissal on the 23rd day of November, 1959.
The petition set forth above, does not contain any allegation showing that the Honorable Francis J. Donofrio, one of the judges of the Superior Court of Maricopa County, in any manner acted without or in excess of his jurisdiction in the instant action.
Inasmuch as the petition utterly fails to state sufficient facts to entitle petitioner to an alternative writ and that on the contrary it appearing that the Superior Court of Maricopa County, Honorable Lorna Lockwood, presiding, was acting wholly within its jurisdiction, the alternative writ of prohibition heretofore improvidently issued should be quashed and it is so ordered.
STRUCKMEYER, C.J., and PHELPS, UDALL and BERNSTEIN, JJ., concur.