Court: Arizona Supreme Court; May 25, 1953; Arizona; State Supreme Court
Andrew Kux initiated legal action against D. W. Onan Sons and D. W. Onan Sons, Inc. in November 1946, which included an attempt at substituted service. The defendants moved to dismiss due to lack of jurisdiction, but the court denied this motion. Kux subsequently petitioned for a writ of prohibition to prevent the superior court from proceeding with the case. On March 31, 1947, the court determined that it lacked jurisdiction over the case and ordered the issuance of the writ, effectively prohibiting any further action in the matter.
In November 1950, more than three years after the writ was issued, Kux filed an amended complaint without the superior court judge's knowledge, attempting to address the jurisdictional issues that had previously led to the dismissal. The defendants moved to dismiss the amended complaint, arguing it was filed in violation of the existing writ of prohibition. The court granted the motion and dismissed the amended complaint.
Kux appealed, contending that the writ was conditional and suggested it only prohibited action under the existing pleadings. However, the court clarified that the writ was unconditional and unambiguous, prohibiting all proceedings in the case. The court emphasized that the interpretation of a writ of prohibition is critical, referencing a similar case where an unauthorized amendment was disregarded, affirming that the writ remained in effect against all actions in the case until further court order.
The preliminary writ of prohibition took effect on January 11, 1936, when the respondent waived formal service and entered his appearance. Following this, the respondent lacked authority to continue with the case or permit the filing of an amended petition on January 15, 1936. Consequently, the amended petition will not be considered when evaluating the relators' entitlement to a writ of prohibition. After the issuance of the permanent writ, the superior court could not take any actions related to the case, including dismissing the amended complaint. However, the order to dismiss was deemed not to further the action but rather to prevent further proceedings, thus the court had authority to issue such an order to ensure compliance with the writ. The judgment is affirmed, with concurrence from Chief Justice Stanford and Justices Phelps, La Prade, and Udall.
