Albuquerque Gas & Electric Co. v. Curtis.

• Decision Date: 27 April 1939
• Docket Number: No. 4463.,4463.
• Court: New Mexico Supreme Court
• Parties: ALBUQUERQUE GAS & ELECTRIC CO.v.CURTIS.

43 N.M. 234

89 P.2d 615

ALBUQUERQUE GAS & ELECTRIC CO.

v.CURTIS.

No. 4463.

Supreme Court of New Mexico.

April 27, 1939.

Error to District Court, Bernalillo County; Bryan G. Johnson, Judge.

Action by Dan E. Curtis against Albuquerque Gas & Electric Company, a corporation. To review an adverse order, defendant brings error.

Affirmed.

Under constitutional provision that Supreme Court shall have superintending control over all inferior courts, Supreme Court would not invoke extraordinary power to review, on writ of error, an interlocutory order that plaintiff was real party in interest and denying plea in abatement, where no harm resulted to defendant by being compelled to await review upon final judgment. Const. art. 6, § 3.

W. A. Keleher and Theo. E. Jones, both of Albuquerque, for plaintiff in error.

Joseph L. Dailey and Waldo H. Rogers, both of Albuquerque, for defendant in error.

BICKLEY, Chief Justice.

Defendant filed a plea in the district court presenting the contention that plaintiff is not the real party in interest. The plea was controverted by plaintiff and a hearing was had, which resulted in an order overruling the plea. Defendant manifested no intention to stand on the ruling and suffer final judgment to be entered against it. To correct that order defendant sued out a writ of error. Plaintiff presents his motion to dismiss the writ of error on the ground that the order denying the plea in abatement is an interlocutory order which does not “practically dispose of the merits of the action so that any further proceedings therein would be only to carry into effect such interlocutory * * order * *.”

The material portion of Sec. 2 of Rule 5 of Supreme Court Rules is as follows: “Appeals shall also be allowed by the district court, and entertained by the Supreme Court, in all civil actions, from such interlocutory judgments, orders or decisions of the district courts, as practically dispose of the merits of the action, so that any further proceeding therein would be only to carry into effect such interlocutory judgment, order or decision.”

Although the rule refers to “appeals”, it is conceded that in a proper case “such interlocutory judgments, orders or decisions of the district court” may be reviewed by the Supreme Court on writ of error. It is also conceded that the remedy of writ of error as here employed does not enlarge the scope of review.

[1][2] From a consideration of the rule, aided by the principles announced in Otto-Johnson Merc. Co. v. Garcia, 24 N.M. 356, 174 P. 422, and Cornett v. Fulfer, 26 N.M. 368, 189 P. 1108, and the cases there cited, we hold that the order and decision of the district court that the plaintiff is the real party in interest, and denying the plea in abatement, is an interlocutory order, but not such an one “as practically disposes of the merits of the action, etc.” The order deprives plaintiff in error (defendant below) of no property right, works no immediate injury to its rights, it cannot damage it until a final judgment is rendered, and then only so far as the order affects said judgment. It does not finally determine or complete the suit. Much is left further to be done by the court in the premises. The order does not prevent a final judgment being rendered in the cause. We further hold that upon a review of a final judgment in the cause, if error be assigned that the district court erred in overruling the plea in abatement, such interlocutory decision will be within the scope of a review of such final judgment.

The motion to dismiss the writ of error is accordingly sustained and it is so ordered.

We think it appropriate to add that our decision in Rosser v. Rosser, 42 N.M. 360, 78 P.2d 1110, is not a precedent to the contrary. Whether the situation in that case may be distinguished from the case at bar we need not now decide. It is sufficient to say that our jurisdiction was not challenged in that case, and if we lacked jurisdiction in that appeal we did not notice it.

[3] It is also appropriate to say that the Chief Justice invited the consideration of counsel for the parties to the question as to whether, if we should decide the interlocutory decision in this case to be not reviewable under Sec. 2 of Rule 5, the plaintiff in error could invoke a review of the district court's decision by virtue of the provision of Art. VI, Sec. 3 of the Constitution of New Mexico, as follows: “The supreme court *** shall have a superintending control over all inferior courts.” The court takes this occasion to express appreciation of the thoughtful and able response to such inquiry embodied in supplemental briefs filed in the cause. We quote from the brief of plaintiff in error:

“The cases construing similar constitutional and statutory provisions are collected in notes, 112 A.L.R. 1351, 20 L.R.A., N.S., 942, and 51 L.R.A. 33. It should be noted that these annotations are not cumulative but only collect the cases decided since the next preceding one.

“A study of the cases pertaining to superintending control and its nature and scope will show that the power is of ancient origin and goes back to early common law days and the early days of the King's Bench in England when that court controlled all inferior courts under it and the proceedings therein. This power was transferred to this country and lodged in the highest courts in colonial days. And at first it was merely a part of the appellate power and original jurisdiction of the highest court. Later it came to be regarded as separate and distinct from either the appellate power or the original jurisdiction of superior courts. The nature and extent of the power of superintending control is fairly summarized by the annotator in 51 L.R.A. at page 111, in these words:

“‘As is so often stated in the decisions, the power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur it will be found able to cope with them. And, if required, the tribunals having authority to exercise it will, by virtue of it, possess the power to invent, frame, and formulate new and additional means, writs, and processes whereby it may be exerted.’

“This view has been accepted as accurate since it was written in 1901.

“Re Louis A. M. Phelan, 1937, 225 Wis. 314, 274 N.W. 411 [415], 112 A.L.R. 1345. In this case a prior suit had been filed in the Federal Court in Illinois. A suit had been filed in the State court of Wisconsin involving the same issues. Application was made to the Supreme Court of Wisconsin for a writ invoking the power of superintending control to stay action pending final determination of the Illinois action. It was granted. The court said as to what constituted superintending control and when it would be exercised:

“‘It will not be exercised when the remedy by appeal or writ of error is substantially adequate. It will not be permitted to perform the office of an appeal. It will be used to prevent irreparable mischief, great, extraordinary, or exceptional hardship, and great burdens in the form of expenses. The court will exercise the power upon sufficient occasion, especially where the fundamental rights of a party or parties are ignored. The power will not be exercised to control the discretion of another court. In our opinion the petitioner has made a sufficient showing to entitle him to bring an action in this court under its superintending power, for a writ of prohibition. Our reasons for so concluding are the same as those stated in the ensuing part of the opinion, in support of the granting of the writ.”

“Hutchins v. City of Des Moines, 176 Iowa 189, 157 N.W. 881 [890].

“In this case the court said that the power of superintending control extended and could be exercised ‘whenever the exigencies of the situation require its interposition.’

“See, also, State ex rel. Hustisford Light, Power & Mfg. Co. v. Grimm, 208 Wis. 366, 243 N.W. 763, and other cases cited at page 1356 of 112 A.L.R.

“This, then, is a very extraordinary and unusual power. It stands unhampered by forms or writs and may be exercised by the court endowed with the power whenever such court deems it necessary.

“We do not need to go beyond our own decisions to demonstrate that the power of superintending control is separate, independent and distinct from the appellate jurisdiction and also from the original jurisdiction. Such is the plain import of the decisions of this court in State ex rel. Harvey v. Medler, 19 N.M. 252, 142 P. 376; State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1; Jackling v. State Tax Commission, 40 N.M. 241, 58 P.2d 1167.

“It would seem to be equally well established that the power of superintending control extends to non-jurisdictional as well as jurisdictional errors of an inferior court. It is not limited to cases where the inferior court is exceeding its jurisdiction.

“In the case of State ex rel., etc., v. Grimm, 208 Wis. 366, 243 N.W. 763 [765], the court said:

“‘Neither the power nor the exercise of it as a matter of policy is limited to keeping the lower court within its jurisdiction or compelling it to act. It has been exercised in cases where the ruling of the lower court was merely erroneous.’

“Natural Gas Products Co. v. Thurman, 205 Ky. 100, 265 S.W. 475 [477], the court said:

“‘*** an appropriate writ will issue, not only in cases where the court is about to proceed or is proceeding beyond its jurisdiction, but it will also issue when the court is proceeding or threatening to proceed within its jurisdiction but in such a manner as to produce great and irreparable injury ***.’

“See, also, the cases cited in 112 A.L.R. 1359.

“This court is committed to the conclusion that the term...