Valles v. Johnson

Decision Date10 November 1950
Docket NumberNo. 5259,5259
Citation223 P.2d 815,71 Ariz. 71
CourtArizona Supreme Court

Martin S. Rogers, of Tucson, for appellant.

Bryce H. Wilson, Pima County Attorney, Victor M, David, Deputy Pima County Attorney, Tucson, for appellee.

STANFORD, Justice.

This is an appeal from an order of the Superior Court, following a hearing on certiorari, affirming an order of the appellee Clark H. Johnson, Justice of the Peace, that appellant be held to answer to the Superior Court on the charge of failure to provide for minor children.

The appellant, Jesus Valles, was charged in accordance with provisions set out in section 43-201 A.C.A.1939, prior to amendment in 1949, which read as follows: 'A parent who wilfully omits, without lawful excuse, to furnish necessary food, clothing, shelter or medical attendance for his or her minor child is guilty of a felony.'

Complaint was filed with appellee, who was Justice of the Peace of the Justice Court, Tucson Precinct No. 2, Pima County, Arizona. Preliminary hearing was had on March 23, 1949, and thereafter, appellee entered an order that appellant be held to answer to the Superior Court on charges made in the above mentioned complaint.

The only evidence taken at the said hearing, was testimony of the complainant, one Petra Avalarde, who stated that she was the mother of the three children involved, that the appellant was the father of the children, that the children were all born out of wedlock and that their parentage had not theretofore been established. Objection was made to the admission of the testimony that appellant was the father of the children concerned, there being no further evidence of the fact offered. The objection was over-ruled and the above mentioned order was issued by the Justice of the Peace.

Application for writ of certiorari was then made to the Superior Court. The same having been granted and hearing had thereon, an order (judgment) was subsequently entered, quashing the writ and affirming the order made in the Justice Court.

From the order of the Superior Court, appellant takes this appeal.

It is the contention of the appellant, by his single assignment of error that there was a lack of jurisdiction in appellee to make the order which was made, because there was no previous judicial determination of the paternity of the children involved, nor acknowledgment of such paternity by accused. Appellee maintains that certiorari to the Superior Court was not the proper remedy open to the appellant for the purpose of contesting the order made by appellee, in that the substance of the objection was an alleged error committed in the admission of incompetent evidence in the testimony of the complainant.

We think the objection made by the appellant was one of jurisdiction, however, section 28-101, A.C.A.1939, which provides an extraordinary legal remedy through certiorari, expressly states that such remedy shall be available only where 'there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.' Clearly, under the circumstances confronting us in the present case, petition for writ of habeas corpus would have reached whatever defect may have existed in the proceedings, and, we must point out, would have indeed been a far more expedient process. In this regard, section 44-3301, A.C.A.1939, reads as follows: 'Every person unlawfully...

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4 cases
  • State v. Essman
    • United States
    • Arizona Supreme Court
    • June 23, 1965 which the contention that the preliminary examination was inadequate, should be presented to the trial court. In Valles v. Johnson, 71 Ariz. 71, 73, 223 P.2d 815, 817, we held that both habeas corpus and a motion to quash the information were available. With regard to the motion to quash......
  • State ex rel. Corbin v. Superior Court In and For Maricopa County
    • United States
    • Arizona Supreme Court
    • April 14, 1966
    ...Superior Court, 100 Ariz. 104, 412 P.2d 45; State v. Essman, supra; Martin v. Superior Court, 96 Ariz. 282, 394 P.2d 211; Valles v. Johnson, 71 Ariz. 71, 223 P.2d 815. The basis of the lower court's decision was that a preliminary hearing must be held in the precinct in which the offense is......
  • Moreno v. Superior Court of Pima County
    • United States
    • Arizona Court of Appeals
    • May 26, 1966
    ...unless and until the judicial determination of his paternity has been rendered, and relies upon the decision of Valles v. Johnson, 71 Ariz. 71, 223 P.2d 815 (1950). In Valles, our Supreme Court indicated in a dicta statement that it was '* * * in agreement * * *' that a justice court order ......
  • Morris v. Apodaca
    • United States
    • New Mexico Supreme Court
    • February 19, 1960
    ...Supreme Court of Arizona was called upon to decide almost the exact question with which we are here concerned, in Valles v. Johnson, 1950, 71 Ariz. 71, 223 P.2d 815, 817. The court held that certiorari was not available to review the erroneous order of a justice of the peace issued in bindi......

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