*1 P.2d money. In addition damages in sought Bankruptcy for appears the Referee Leonard, Pearline PORTER and Pauline P. Petitioners, phases as handling certain Arizona is here mortgages validity certain of the STANFORD, Judge Honorable Jr., R. C. question. Superior Court, Maricopa County, Arizona, Respondent. State of appears from indubitably No. 6910. judge respondent court Supreme Court of Arizona. equi improper substituting an
thereof are adequate bond remedy no table Dec. —in and their posted protect the remedy, legal clear rights a—for (where garnishment e., i. of attachment precedent). condition
adequate bonds controlling le be done. cannot succinctly forth set principles are
gal Valley Drive-In entitled
replevin action Court, Superior Corp. v.
Theatre situa involved a 213, which
396, 291 P.2d instant identical practically
tion respondent present There
case. in no un were told judge) same
(and the equity are courts of terms
mistakable positive plain and by the bound much law, are courts a statute
provisions clearly established rights are where power equity no statute, has
defined rights. upset such
change or juris- the trial
Clearly question. the orders enter
diction here- prohibition writ alternative peremptory. is made issued
tofore
Beer, Phoenix, Polley, Seaman & petitioners. Wilson, Phoenix, & Jerry
Wilson Giesler, Hills, Cal., Beverly respondent. PHELPS, Chief Justice. petitioners, Pearline Porter Leonard, Pauline P. pro- seek writ of hibition to restrain the court Stanford, and the Honorable Jr., R. C. one thereof, judges from an enforcing payment order for money prop- assets of erty allege partner- to be ship property. hear- Following informal ing alternative writ issued.
The facts are on February Gladys E. Porter commenced an action for against maintenance her nonresi- husband, dent William Arnold superior of Maricopa County. court described the Arizona Hotel alleged that was the com- parties. munity property of the Part of the existed denied that the Mrs. Porter by relief asked Hotel is Arizona alleged the and amount a certain set aside partnership property her for Hotel to from the income husband; al- chil- property herself her of herself lawful; and payment leged attachment for the parties, and dren of the Having against claim not admitted that her costs. attorneys’ and court fees partnership. by upon her husband perfected service writ caused a publication, Mrs. Thereafter, April upon the sheriff be levied attachment to Porter made motion of Hotel, February 1959. Eu- M. E. one appointing entered its order bank Hotel Pauline the Arizona as receiver Thereafter, Porter and Pearline intervene, powers duties with the a motion filed P. Leonard conserving charge managing taking claiming an interest they being posted it. bond granted qualified, motion Mr. Eubank property. That Febru- April 1959. intervention became the receiver complaint in their filed peti- complaint the their By ary April 24, On the court issued *3 8, appear May and on Porter order to Mr. Eubank to Pearline (interveners tioners 1959, pay to why referred to cause he hereafter show should P. Leonard Pauline prop- the Hotel alleged that petitioners) per sup- $3,000 as for her Porter month community question was erty port support minor and of the three in fact of the Porters children, $5,000 attorneys’ together with as the known of a pendente pro- fees the Hotel’s lite from that System; 6, Hotel 1959, Continental May ceeds. interveners moved them copartner with a Porter was Arnold quash court to the order to show cause. Mrs. Porter’s that partnership; in that separate A decree of maintenance was partner- against the anot claim claim 14, made May By and entered part- any specific against claim ship nor a adjudged and decree the court ordered that that the attachment property; and nership Mrs. Porter is live authorized question, there- property in upon the levied husband; apart her that she re- and lien in favor valid not create fore, did $3,000per support ceive month and mainte- relief, petitioners For Porter. of Mrs. care, ; custody, that she have nance con- and attachment be removed asked trol education of the minor children discharged. parties; attorneys’ of fees be $15,000; petitioners’ that she to the fixed at have lien answer com- on all By 1959, support for under March filed plaint her- support E. Porter towards the pendente $10,200, in the sum lite order of sum sum children the attorneys’ fees and the minor together with self * * * lite; $1,000 pendente costs of parties month, day commencing each interest any community first day luly, charged be with the Arizona Hotel first until plaintiff; payment each month first thereafter pendente lite is (Em- Order payments the lien for Court.” further phasis Ari- any community added.) interest affix to to receive Hotel; zona that she petitioners grounds assert two expended costs attorneys’ fees which pro- this court issue a should writ this action. against First, hibition the trial court. having been quash Petitioners’ motion the court was jurisdiction to issue cause the order to show denied, hearings on the order show cause Mr. Eubank as respective- following dates held on the receiver Arizona Hotel. And sec- 1959; 1959; May ly: May June ond, that the court acted in excess its 26, 1959. 1959; jurisdiction June June him ordering to make the court proceedings 19th During payments question June pending deter- which parts of pertinent made an order the mination ownership the Hotel follow: property. “Therefore, it is ordered question Petitioners raise the ju- Arnold
interest William risdiction of the court to issue the order charged show directed at the receiver of the payment appointed Hotel property by the nance of maintenance action * * * pay- children, plaintiff E. Porter was attorney’s fees ment of defendant, William Arnold Porter was Court, in heretofore ordered in which intervened as Separate Maintenance. the Decree plaintiffs. Suffice it to say that said order *4 * * * ordered It is further superfluous. to show entirely cause was the Plain- issue whether until the of Ellis, Sawyer 443, v. said We sole owners are the and Defendant tiff 295 P. Hotel, partners are or “ ** * Interveners, Generally speaking, he Pearline Porter with Receiver, receiver) agent is not an Leonard, (the P. Pauline parties, merely but is minis- Eubank, shall to said pay Mr. 406 un- first each thereafter day He stands month
terial
court.
officer
repre-
attitude,
til
further Order
Court.”
in an
not
indifferent
in-
senting either the owners
has been
what
It
seen from
will
creditors,
real-
but
solvent estate
or
already
the court had
fixed
said above that
acting un-
ly
the court
representing
per
month
$3,000
the sum
for the
all
direction,
der its
benefit
for the
children
E. Porter and the minor
parties to
parties
in interest.
Arnold
defendant William
au-
least
litigation
have not
lite,
pendente
for
court
costs of
him,
they
thority
nor
over
$5,000.
juris
It had
attorneys
fees of
he
liability
what
right
to determine
subject
diction
authority
incur;
his
may may
or
jurisdiction to
litigation
matter
the act of
solely
derived
as it deemed
in such amount
enter an order
subject
him,
is the
appointing
and he
support pendente lite. The-
proper
their
”
* *
*
Citing au-
only.
of its order
hearings were
records
several
show
thority.
pursuant
to show
held
to the order
above,
amount
complained
held
above case
in the
The court
shown.
$1,000
case has sub-
above
liquidation
reduced to
in a bank
power
the receiver
the same
over
stantially
jurisdiction to
The court likewise had
ordinary in-
receiver
as it had over
temporarily
the amount from
reduce
case
the instant
solvency
The court
case.
per
circumstances
if the
month to
had,
insofar
entered
due
it.
developed
warranted
by the evidence
following order:
pertinent, the
here
It
25-321.
A.R.S.
and A.R.S.
25-315
§
§
is further
ordered
“
only
also
to order
authority
the Plaintiff
whether
the issue of
until
lite
pendente
pay
such amount
husband
owners of
sole
are
and Defendant
re-
to direct
authority
it also had
partners
or
so.
community property to do
ceiver of
Interveners, Pearline Porter and
Court,
Superior
1 Cal.2d
Nichols v.
Receiver,
Leonard, the
Mr.
Pauline P.
894;
A.L.R.
Atkinson
P.2d
Eubank,
pay
shall
to said
Court,
Superior
Cal.App., 310 P.2d
towards
herself
Murray,
115 Cal.
Murray v.
$1,-
children
sum of
P.
37 L.R.A.
* * *
day
on
first
month,
The second
commencing
contention of interven
of each
July, 1959,
equally
first
as untenable
ers
as the first.
*5
both
jurisdiction therefore
The court had
Wil-
Porter v.
The
reduce
fix
and to
her
at
in
verified
duly
is
Arnold Porter
liam
ac-
temporarily if it deemed
alleges
it
by statute
prescribed
manner
proper.
tion
com-
own as
plaintiff and defendant
Block
1, and S of
“Lots
property
munity
prohibition
The alternative writ of
Phoenix, ac-
Townsite
Original
is therefore
improvidently
and it
issued
map
plat
record
cording to
quashed.
ordered
Maricopa
Recorder of
County
office of
legal
a
constitutes
County,
Arizona.”
UDALL,
STRUCKMEYER,
description
which
BERNSTEIN, JJ., concurring.
no
There was
is located.
Arizona Hotel
Wil-
complaint by defendant
answer to
JOHNSON,
(dissenting).
Justice
in its de-
The court
Arnold Porter.
liam
allegations
the material
all
cree found
agree
I am
unable to
with the decision
Therefore,
complaint to be true.
majority
opinion
firmly
am
issues there-
he is concerned
insofar as
contrary
to the
the result reached is
an-
judicata. The
are res
in determined
jurisdiction.
established law this
First:
application for writ
petitioners’
a
swer to
majority opinion
As I view the
now
of con-
prohibition alleges that
deed
the law in
cred-
this state that individual
A.
veyance
partnership
itors members of a
can
recorded
Gladys E. Porter
Porter and
partnership
applied
liquidation
assets
county
the office of
July
of their
accounting
is had
claims before
Arizona,
Maricopa County,
recorder of
partnership
before the creditors
page
al-
241 at
311 thereof. This
docket
are satisfied. Second:
By
virtue of the
it is
So far as the
legation stands undenied.
possible
25-321,
now
under
A.R.S. §
concerned
is no
before us is
there
record
modify
a final
filing
without
a
property involved
proof
either
petition seeking
modification,
process
service
defendant and
husband or that it is the
Porter and.
presentation of
without the
evidence show-
presump-
partnership.
property of
ing
change
circumstances
and condi-
community therefore
tion that
tions.
prevail
and will continue
obtains
destroy-
it is
majority,
correctly
Porter until
favor
decision
states
litigation,
giving
to this
facts
rise
how-
contrary.
ed
evidence to
majority that
ever,
agree
facts
I cannot
with the
reveals additional
find-
merely
correct
because
trial court made
material
to a
believe are
problems
these
involved and
answer
ing
final decree
discussing
various
will be set forth
allegations of
nance
all the material
issues.
*6
complaint
the
this constitut-
were true that
rights
adjudication
ed an
of the
opinion
comes to
con-
parties.
finding
not
of the
Such a
is
the Arizona Hotel
clusion that
judgment,
merely
but
the foundation
community property of
is
judgment.
gen-
This well established
Porter,
Arnold
because
Porter and William
Higley
plainly
eral rule
of law is
stated
sep-
E. Porter in
673, 676, as
Kinsman, Iowa, 216
v.
N.W.
alleged that
arate maintenance
follows:
community
and that the
“It
rule that
is
is a well established
decree made a
trial court in the final
find-
only
portion of a
the decretal
decree
allegations contained
that “all of the
ing
binding
is
ad-
that
becomes res
complaint are true.” The decree is
in the
judicata.
The recital
facts
a de-
specific finding
any
or conclu-
silent as to
proper,
is
property is
cree is usual and
but the
that
the Arizona Hotel
sion
parties
adjudicated,
of the
rights
matter
community property, and
aas
facts,
by
solely
by
recital of
make
not
apparently declined to
fact the court
portion of
conclusion,
language
the decretal
the decree.
find
for we
such
only
that
day of
is this
becomes
the 14th
-and
entered on
the decree
court,
judgment from
final
May, 1959:
appeal
(Citing
will
lie.”
“ * * *
community
That
cases.)
in the
hereto
interest of
language
Galiger McNulty,
v.
used
Hotel,
and of
being
5
Lots
particular-
403 is
Mont.
P.
Phoenix,
74, original
Block
townsite
“A
ly pertinent
this matter:
map of
to the
according
not reside
its recitals but in the
does
County Recorder of Mari-
of the
office
mandatory portion of it.”
also
See
Holmes
Arizona,
hereby
County,
copa
Wyo. 317,
Prior to
orders to
the 14th
then,
of things
take care
decree
maintenance
until
but the
an matter
ownership
hotel
court had issued
entered
ap-
going
order to
to have to be tried
show
to the receiver
out
case
cause
pear
(Emphasis
in the main.”
why
supplied.)
and to show cause
he should
pay Gladys
the defendant
language
court made
intervention,
an amount for her
date
decree
minor children
maintenance,
beyond any question
shows
fees,
also
attorney’s
a sum for
finally
of a doubt that the court
did
response
Arizona Hotel. In
determine or decree that
Arizona Hotel
herein
quash
filed
motion to
their
was community property
parties.
grounds
show
*7
How, then,
question
when
was
this
require
improper
would
for the court to
settled,
the majority
can
decision hold
the receiver
property
of
the
separate
the decree
res
of
maintenance
pay
requested
property
the funds
judicata
ownership
toas
the issue of the
legal
entrusted
himto
as receiver until a
of
property.
this
in
Court has stated
determination had been made
whether
as to
Stevens,
Manor v.
152 P.2d
property
property
the hotel
the
the
of
“ *
**
133, 135,
it is a fundamental
property of
community
or the
precept
judicata
the law of
of
res
Gladys
wife,
Arnold Porter
his
questions
by
issues, actually
raised
the
liti-
respondent
Porter. The
E.
the
denied
gated
and determined
the
or
by
quash.
motion to
decree,
thereby,
are settled
judg-
hearings on the
to show cause
order
may
upon
ment or decree
be relied
as an
15, 1959,
May
began on
the decree
of
estoppel by
against any
party
other
maintenance
been entered
**
party
*(Emphasis
supplied.)
continued
various times until
at
26th
hearing
At the conclusion of the
on the
June,
During
day
19, 1959,
order to show
following proceedings
June
June
following
had:
court made
orders:
were
Hotel'
indirectly
ruling
“Therefore,
was
ordered
A..
of William
of William Arnold
interest
Gladys
Porter,
the-
Porter and
E.
charged with
the Arizona Hotel be
peti-
partnership of a
payment
support
partners
ruling-
tioners
nance of
E.
per
question
in effect
children,
deciding
the sum of $300
summary
manner
than
month,
rather
May
commencing
by
petitioners’ com-
the issues created
payment
attorney’s
fees
of the-
plaint in
answer
$5,000,
ordered
intervention and the
sum of
heretofore
Court,
defendant
intervention.
the decree
maintenance.
am
of the
You
Francis
mean
Wilson:
“Mr.
entering-
exceeded
jurisdiction
its
$3,000?
pay to-
requiring
the receiver to
order
$3,000
say,
“The Court: Did I
money from the
support
E. Porter
attorney’s
money
the-
assets
Arizona Hotel
view
sepa-
set
the decree of
forth in
fees
complaint in intervention and
there
answer
ordered
maintenance. It is further
rate
then
trial court
which were
issue. The
at
whether
that until
issue of
jurisdiction
summarily determine-
had no
are the
plaintiff and defendant
sole
question
ownership
the hotel.
or
owners
is,
reason
make
that to
order-
interveners, Pearline
partners with the
application
directing
Leonard, and Pauline P.
by Gladys
claimed
Porter would
effect
receiver,
Eubank,
pay to said
Mr.
shall
deprive
be to
herein of their
Gladys E. Porter towards the
summary proceeding
and'
herself and the minor children
law,
process
due
Miller
day
15th
sum of
;
412 appears However, it be- by the question
While this was raised respondent trial fore court did the pleadings court nor court, dispute reducing after decree the trial court’s final, without provided in the nance had become money amount without maintenance, request petition therefor and neverthe- or decree upon the type to or defend- less, notice service the effect husband, judgment ant re- contrary principles modified is so established our money; en- amount ducing that I to take issue. of law feel constrained provisions of tirely disregarding A.R.S. concede that I if “ * * * 25-321, provides that § petitioned for a modifica- lower court ”, petition party the final of either separate maintenance tion of the decree of elementary may judgment be modified. service, personal or and had either secured final cannot be modified constructive, petition and notice of said 2, process, Article Sec- without service of husband, A. hearing, upon her Constitution, A.R.S., tion authority Porter, then of A.R.S. under the defendant, opportunity an notice to 25-321, appearance or default § presentation of evidence war- heard and husband, petition, change original decree. ranting a modified, assuming of the decree could be steps jurisdictional these None of course, satisfied from the taken—therefore change had been a there evidence completely jurisdiction and conditions since the en- circumstances modify v. the decree. McDonnell Southern original tering of decree. Cone v. Company, 281 Pacific P.2d 792. 240 P.2d Righetti, Ariz. Burk v. Burk, permanent Ariz. 205 P.2d make and Gott- would writ of Gotthelf, 38 Ariz. P. prohibition helf heretofore issued.