68 P.2d 928 (N.M. 1937), 4187, Golden v. Golden

Docket Nº4187.
Citation68 P.2d 928, 41 N.M. 356, 1937 -NMSC- 021
Opinion JudgeZINN, Justice.
Party NameGOLDEN v. GOLDEN.
AttorneyR. A. Prentice and J. V. Gallegos, both of Tucumcari, and E. R. Wright and Donovan N. Hoover, both of Santa Fe, for appellant. Myron B. Keator and C. H. Hittson, both of Tucumcari, and H. A. Kiker and Manuel A. Sanchez, both of Santa Fe, for appellee.
Judge PanelSADLER and BRICE, JJ., concur. HUDSPETH, Chief Justice (concurring in part and dissenting in part). BICKLEY, Justice (concurring in part and otherwise dissenting).
Case DateApril 24, 1937
CourtSupreme Court of New Mexico

Page 928

68 P.2d 928 (N.M. 1937)

41 N.M. 356, 1937 -NMSC- 021

GOLDEN

v.

GOLDEN.

No. 4187.

Supreme Court of New Mexico

April 24, 1937

Rehearing Denied June 21, 1937.

Appeal from District Court, Quay County; Harry L. Patton, Judge.

Suit for divorce by Margaret Golden against Ernest M. Golden. Judgment for plaintiff, and defendant appeals.

Affirmed.

Page 929

R. A. Prentice and J. V. Gallegos, both of Tucumcari, and E. R. Wright and Donovan N. Hoover, both of Santa Fe, for appellant.

Myron B. Keator and C. H. Hittson, both of Tucumcari, and H. A. Kiker and Manuel A. Sanchez, both of Santa Fe, for appellee.

ZINN, Justice.

Margaret Golden, hereinafter referred to as appellee, sued Ernest M. Golden, the appellant, for divorce. He defended on two grounds. First, that a decree of divorce had been granted to him from Margaret by the civil district court of Brevos district, City of Juarez, state of Chihuahua, Mex., upon petition signed by both, and that such decree is a bar to the present suit and appellee is estopped from bringing the instant suit because the identical issue had been litigated in the Mexican court. Second, that the marriage between them was not a valid marriage having been solemnized by the probate judge of Curry county, N. Mex., which official appellant contends is not a civil magistrate within the meaning of Comp. St. 1929, § 87-102. Thus two issues of law are squarely presented for our determination. Two other minor issues are raised on appeal.

The trial court ruled in favor of appellee granting the divorce and awarding her a lump sum in settlement of her property rights and as alimony. This appeal is prosecuted by appellant.

Facts necessary to a clearer understanding of the issue will be recited from the record in this opinion as the questions are determined. The transcript and briefs are voluminous. Counsel for both parties by their research and brief have ably presented this case.

The first point assigned in the brief presents the question of the validity of a marriage solemnized by a probate judge.

The Organic Act establishing the Territory of New Mexico, approved September 30, 1850, fixed the judicial powers of the courts. Probate courts in the Territory, as now, were courts of special and limited jurisdiction. Appellant contends that such judges cannot solemnize marriages, being confined to the administration of personal estates, and other duties specifically assigned to such tribunal by the Legislature, and are not "civil magistrates" within the meaning of Comp. St. 1929 § 87-102.

It is conceded that the Legislature never expressly authorized judges of the probate courts of New Mexico to solemnize marriages. Neither do we find where judges or justices of any other court are expressly authorized by statute to solemnize marriages. To us is left a determination of who constitute "civil magistrates" within the meaning of section 87-102. This must be determined in the light of the meaning of the phrase "magistrado civil" or civil magistrate as found in the act of February 2, 1860, C. L. 1865, c. 75, § 1, now Comp. St. 1929, § 87-102. This section was originally section 2 of "An Act to Incorporate the Mesilla Mining Company" of the laws of the Territory of New Mexico passed by the Legislative Assembly, Session of 1859-1860, p. 120, approved Feb. 2, 1860. It would be very interesting to know how a section authorizing ministers and magistrates to solemnize marriages found its way into an act

Page 930

incorporating a mining company. At this late date we might only speculate. Nevertheless, it became the law and is the law to this date.

Probate courts during the year of 1850 when the Organic Act was approved, and for many years thereafter, had a far more extensive jurisdiction than at the present time. The statute books of the time and later show that such courts were vested not only with probate jurisdiction, but also with jurisdiction of other civil and criminal matters as well. Their jurisdiction would justify their denomination at that time as courts intermediate between the justice of the peace courts and the district courts. They were courts of record, having a clerk and seal. Certain causes tried in the courts of the justices of the peace were appealable to the probate courts. See "An Act to Regulate and conduct Causes in Appeal in all the Courts of this Territory," adopted January 30, 1862. Laws 1861-62, p. 50. Throughout the entire period of time from the passage of the Organic Act and many years thereafter, laws were enacted giving the probate court jurisdiction over matters beyond the limited scope of a court having strictly probate jurisdiction.

A very clear example of the more extensive jurisdiction of the probate courts is indicated by a law approved the very day section 87-102 was approved, which gave probate courts extensive jurisdiction in civil and criminal causes. This act so far as material reads as follows:

"Sec. 2. The probate courts shall have jurisdiction in civil suits upon open and liquidated accounts, replevin, debts of any nature, when the sum claimed does not exceed five hundred dollars. Said courts shall also have jurisdiction in all criminal cases which pertain to the jurisdiction of justices of the peace, having concurrent jurisdiction with them in such causes, and shall receive appeals according to and under the same restrictions as now provided by law relative to appeals, touching such crimes, taken from justices of the peace to said probate courts.

"Sec. 3. That the practice in the said courts of the judges of probate shall be the same as that in the district courts, in all its parts and provisions."

The remaining sections of the act relate to the drawing of the petit jurors, for service in the probate court, their compensation, the number of peremptory challenges available to each party, the time of holding terms in the various counties, and other matters not pertinent to the question under consideration. See Laws of 1859-60, p. 90.

It is clear to our minds that the phrase "presiding magistrate" found in section 905 of the Organic Act (Rev.St.U.S. § 905, 28 U.S.C.A. § 687) included probate judges. Counsel for appellant argue that probate judges are not the same as those magisterial officers who at the time of the military occupation of the Territory (after the Treaty of Guadalupe Hidalgo, [9 Stat. 922]) and before the adoption of the Organic Act were known as prefects. The Revised Statutes of 1850 (Kearney Code), c. 12, compiles all the various statutes theretofore enacted relating to courts and judicial powers. Article 3 of said chapter clearly indicates that the probate judges were the same as the prefects. It is too apparent to even admit of argument that the probate judge in 1860 was no other than the officer theretofore known as prefect. For example: In 1859-60 (and throughout that period), upon the creation of a new precinct, the Territorial Legislature imposed the duty upon the probate judge to order an election to be held in such newly created precinct to elect a justice of the peace and a constable for the newly created precinct. Habit, which is sometimes strong, permitted the use of the word prefect where probate judge was intended in one of the acts creating such a precinct. See "An Act creating an additional Precinct in Rio Arriba County." Laws of New Mexico, 1859-60, p. 24. Compare with "An Act creating Precinct of the Preciosa Sangre de Cristo, Number 10, of the County of Valencia." Laws of New Mexico, 1859-60. p. 56. Also p. 82, and others. Clearly the prefect was the probate judge and the alcalde the justice of the peace.

From a reading of the various statutes in existence at that time, it clearly appears to us that a probate judge was a magistrate even in the narrower sense contended for by counsel for appellant.

We must, however, look to the meaning of the term "magistrate" as found in the statute itself. That is, who comprised the body of men known in 1860 as "civil magistrates."

"In its most enlarged signification, this term (Magistracy) includes all officers, legislative, executive, and judicial. In a more confined sense, it signifies the body of officers whose duty it is to put the laws in force; as, judges, justices of the peace and

Page 931

the like. In a still narrower sense, it is employed to designate the body of justices of the peace. It is also used for the office of a magistrate." (Italics ours.) 38 C.J. 332.

In Gordon v. Hobart, Fed. Cas. No. 5,609, 2 Sumn. 401, Justice Story said: "I know of no other definition of the term 'magistrate' than that he is a person clothed with power as a public civil officer." Citing 1 Bl.Com. 146. This definition is quoted approvingly in Compton v. Alabama, 214 U.S. 1, 29 S.Ct. 605, 53 L.Ed. 885, 16 Ann.Cas.1098.

Paraphrasing Justice Story, we know of no other definition of the term "magistrate" than that he is a person clothed with power as a public civil officer. The Territorial Legislature of 1859-60 clearly understood that probate judges were judges of courts of record, with a clerk and seal, and clothed with power as public civil officers. The members of the Legislative Assembly of 1859-60 were largely natives of the then Territory of New Mexico. They and their ancestors had lived in the Territory prior to the annexation of the same by the United States of America. This is evidenced by the fact that almost all of the laws and resolutions adopted at that session were in the Spanish language. To these legislators the prefect and the judge of the probate court were the same. A prefect was a "magistrate" designated as such in law. See Kearney Code, p. 85, under the heading "Practice of Law in Criminal Cases." When a change was...

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23 practice notes
  • 167 P.2d 848 (Mont. 1946), 8572, Stefonick v. Stefonick
    • United States
    • Montana United States State Supreme Court of Montana
    • March 30, 1946
    ...P. 549; Openshaw v. Openshaw, 1932, 80 Utah 9, 12 P.2d 364; Schuster v. Schuster, 1936, 88 Utah 257, 53 P.2d 428; Golden v. Golden, 1937, 41 N.M. 356, 68 P.2d 928; Evans v. Evans, 1933, 182 Wash. 297, 46 P.2d 730; Christenson v. Christenson, 1926, 141 Wash. 226, 251 P. 111; Wilhelm v. Wilhe......
  • 60 N.E.2d 716 (Ohio App. 1 Dist. 1944), Glassman v. Glassman
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • April 17, 1944
    ...287, 63 S.Ct. 207, [75 Ohio App. 51] 87 N.Ed. 279, 143 A.L.R. 1273; Winston v. Winston, 50 App.D.C. 321, 271 F. 551; Golden v. Golden, 41 N.M. 356, 68 P.2d 928; DuQuesnay v. Henderson, 24 Cal.App.2d 11, 74 P.2d 294. (3) The Court of a state in which a petition for divorce is filed has the p......
  • 32 A.2d 68 (Conn. 1943), Hooker v. Hooker
    • United States
    • Connecticut Supreme Court of Connecticut
    • April 20, 1943
    ...57 App.D.C. 216, 19 F.2d 690, 54 A.L.R. 75; Jardine v. Jardine, 291 Ill.App. 152, 9 N.E.2d 645; Golden v. Golden, 41 New Mex. 356, 369, 68 P.2d 928. Other courts have reached a different conclusion. [130 Conn. 51] Norris v. Norris, 200 Minn. 246, 273 N.W. 708; Horowitz v. Horowitz, 58 R.I. ......
  • 748 P.2d 984 (N.M.App. 1987), 9860, Watson v. Blakely
    • United States
    • New Mexico Court of Appeals of New Mexico
    • December 29, 1987
    ...clause, however, does not apply to judgments obtained in foreign countries or to marital agreements approved therein. Golden v. Golden, 41 N.M. 356, 68 P.2d 928 (1937); see also Feinberg v. Feinberg, 40 N.Y.2d 124, 386 N.Y.S.2d 77, 351 N.E.2d 725 (1976), on remand, 96 Misc.2d 443, 409 N.Y.S......
  • Request a trial to view additional results
23 cases
  • 167 P.2d 848 (Mont. 1946), 8572, Stefonick v. Stefonick
    • United States
    • Montana United States State Supreme Court of Montana
    • March 30, 1946
    ...P. 549; Openshaw v. Openshaw, 1932, 80 Utah 9, 12 P.2d 364; Schuster v. Schuster, 1936, 88 Utah 257, 53 P.2d 428; Golden v. Golden, 1937, 41 N.M. 356, 68 P.2d 928; Evans v. Evans, 1933, 182 Wash. 297, 46 P.2d 730; Christenson v. Christenson, 1926, 141 Wash. 226, 251 P. 111; Wilhelm v. Wilhe......
  • 60 N.E.2d 716 (Ohio App. 1 Dist. 1944), Glassman v. Glassman
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • April 17, 1944
    ...287, 63 S.Ct. 207, [75 Ohio App. 51] 87 N.Ed. 279, 143 A.L.R. 1273; Winston v. Winston, 50 App.D.C. 321, 271 F. 551; Golden v. Golden, 41 N.M. 356, 68 P.2d 928; DuQuesnay v. Henderson, 24 Cal.App.2d 11, 74 P.2d 294. (3) The Court of a state in which a petition for divorce is filed has the p......
  • 32 A.2d 68 (Conn. 1943), Hooker v. Hooker
    • United States
    • Connecticut Supreme Court of Connecticut
    • April 20, 1943
    ...57 App.D.C. 216, 19 F.2d 690, 54 A.L.R. 75; Jardine v. Jardine, 291 Ill.App. 152, 9 N.E.2d 645; Golden v. Golden, 41 New Mex. 356, 369, 68 P.2d 928. Other courts have reached a different conclusion. [130 Conn. 51] Norris v. Norris, 200 Minn. 246, 273 N.W. 708; Horowitz v. Horowitz, 58 R.I. ......
  • 748 P.2d 984 (N.M.App. 1987), 9860, Watson v. Blakely
    • United States
    • New Mexico Court of Appeals of New Mexico
    • December 29, 1987
    ...clause, however, does not apply to judgments obtained in foreign countries or to marital agreements approved therein. Golden v. Golden, 41 N.M. 356, 68 P.2d 928 (1937); see also Feinberg v. Feinberg, 40 N.Y.2d 124, 386 N.Y.S.2d 77, 351 N.E.2d 725 (1976), on remand, 96 Misc.2d 443, 409 N.Y.S......
  • Request a trial to view additional results

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