Gilmore v. Dist. Court of Fifth Judicial Dist.

• Decision Date: 25 August 1930
• Docket Number: No. 3577.,3577.
• Citation: 35 N.M. 157,291 P. 295
• Parties: GILMOREv.DISTRICT COURT OF FIFTH JUDICIAL DIST. et al.
• Court: New Mexico Supreme Court

35 N.M. 157

291 P. 295

GILMORE

v.DISTRICT COURT OF FIFTH JUDICIAL DIST. et al.

No. 3577.

Supreme Court of New Mexico.

Aug. 25, 1930.

Syllabus by the Court.

Prohibition will not issue if inferior tribunal has jurisdiction of both subject-matter and of person; prohibition will issue as matter of right where inferior court lacks jurisdiction of subject-matter and person, where both are necessary (Const. art. 6, §§ 13, 27).

If the inferior court or tribunal has jurisdiction of both the subject-matter and of the person where necessary, the writ of prohibition will not issue, but lacking such jurisdiction the writ will issue as a matter of right.

Original proceeding for writ of prohibition by Pearl T. Gilmore against the District Court of the Fifth Judicial District and G. A. Richardson as Judge of said court.

Alternative writ of prohibition discharged with directions.

Prohibition will not issue if inferior tribunal has jurisdiction of both subject-matter and of person. Const. art. 6, §§ 13, 27.

Tom W. Neal, of Lovington, and W. A. Gillenwater, of Santa Fé, for relator or petitioner.

T. A. Whelan, of Lovington, and Emmett Patton, of Roswell, for respondents.

CATRON, J.

This is a proceeding for a writ of prohibition brought by Pearl T. Gilmore against the district court of the Fifth judicial district of the state of New Mexico and G. A. Richardson, Judge of said district court, in which an alternative writ of prohibition was heretofore granted.

William T. Gilmore, the owner of certain lands in Lea county, N. M., died intestate in Stephens county, Tex., August 17, 1927. He also owned certain property in Stephens county, Texas. Mrs. Pearl Trowbridge, the same person as Pearl T. Gilmore, the petitioner herein, administered the estate of said decedent in the county court of Stephens county, Tex., and in her final report represented to the court that John Gilmore, a full-brother of decedent, and J. R. Dennis, Roy E. Dennis, H. E. Dennis, and Lula Dennis Stafford, children of a half-brother, were the only heirs of said decedent, and were entitled to the property of the estate of William T. Gilmore, deceased. On May 8, 1928, upon the report and application of said Pearl Trowbridge, administratrix, said court of Stephens county, Tex., made and entered its final judgment and decree in said case, wherein said John Gilmore and the four Dennis children were adjudged to be the only heirs and entitled to the estate of William T. Gilmore, deceased. The lands in Lea county, N. M., were not included in nor mentioned in the Stephens county, Tex., administration.

Some time in August, 1928, John Gilmore, claiming to be the only brother and surviving heir of decedent, presented to and filed in the probate court of Lea county, N. M., a petition for the appointment of an administrator of the estate of said William T. Gilmore, deceased. Thereupon A. A. McDaniel was appointed as such administrator, and apparently qualified in the manner required by law.

While said administration was pending, S. B. Crabtree purchased from John Gilmore and wife all of the oil and gas and other mineral rights, in said lands owned by decedent at the time of his death, and later all the surface rights in said lands, receiving general warranty deed for each of said purchases.

Crabtree sold and conveyed various oil and gas leases and royalty interests in said land to various parties, among them being the Pueblo Oil Company and the Landreth Production Corporation.

During said administration, Pearl T. Gilmore, the Dennis children, S. B. Crabtree, the Pueblo Oil Company, and the Landreth Production Corporation appeared in said probate court, filed pleadings, and litigated the question of heirship of William T. Gilmore.

Upon the final hearing in said cause the probate court of Lea county, N. M., adjudged the said Pearl T. Gilmore to be the wife and sole heir of the said decedent, and decreed the entire estate to her.

Less than ninety days after said judgment, S. B. Crabtree, Pueblo Oil Company, Landreth Production Corporation, and the four Dennis children joined in a motion for an appeal to the district court, in which they alleged that they are aggrieved by the order, judgment, and the final decree of said court, and pray an order of the court allowing all of them, and each of them, an appeal to the district court of Lea county, N. M. They also filed a joint appeal bond in the sum of $500, wherein each of said appellants are principals, and the American Employers' Insurance Company, a corporation, is surety; the conditions of said bond being those specified in our statute. They also filed a præcipe for the record. Thereafter the appeal bond was approved by the probate court and a formal order was entered by said court on January 29, 1930, allowing said appeal, wherein it is recited that said motion for appeal is in proper form and duly and regularly filed, and that a proper and sufficient appeal bond, such as is required by law, was filed at the same time, and that the said bond has been approved by the court as to form, sufficiency, and execution. It is further provided in said order that the appeal as prayed for in said motion “be and the same is hereby allowed, and the clerk of this court is directed to forward to the clerk of the District Court of Lea County, New Mexico, all the papers filed in the above entitled cause, except the transcript of the testimony, and copies of all orders made in said cause.”

That pursuant to said order said cause was transferred to the district court of the Fifth judicial district, Lea county, N. M., and there docketed January 29, 1930, as cause No. 980 on the civil docket of said court.

On February 28, 1930, the Dennis children jointly, and the Pueblo Oil Company separately, filed motions in the district court of Lea county that their appeals taken in said cause be dismissed. These motions appear to be still pending and undecided, appellants S. B. Crabtree and the Landreth Production Corporation having filed their objections thereto.

Thereupon the petitioner, Pearl T. Gilmore, moved to dismiss said appeal for want of jurisdiction in said district court, which motion was, by order of the district court, dated March 25, 1930, overruled and said cause ordered to proceed regularly to trial.

Thereupon, on April 8, 1930, said petitioner applied to this court for a writ of prohibition, setting forth therein the same identical grounds as those contained in the motion to dismiss filed in the district court, and one additional ground. Upon the presentation of said petition an alternative writ of prohibition was by this court issued.

Respondent first filed a demurrer, but subsequently filed an answer under a stipulation, approved by this court, to the effect that by so doing rights under the demurrer were not waived. The cause has been here argued fully, both upon the questions raised by the demurrer, and upon the merits presented by the petition and answer.

Relator, in support of her petition in this court, contends that, in matters relating to decedents' estates, probate courts have exclusive original jurisdiction and district courts only appellate jurisdiction; that strict compliance with the appellate procedure provided by law is an absolute prerequisite to acquisition of jurisdiction by the district court. Proceeding upon this premise, relator further contends:

1. That the motion for appeal does not state facts showing that any of the persons joining in same are in any way interested in the decree appealed from, aggrieved thereby, or that they have the right of appeal.

2. That the motion for appeal is a joint motion by several parties to appeal the cause jointly, whereas it can only be made separately by each appellant.

3. That the appeal bond limits the liability thereunder to $500, whereas its condition should be to prosecute the appeal with diligence and effect, and pay all costs of such appeal as shall lawfully be adjudged.

4. That the appeal bond purports to be a joint bond of several appellants, and is not security for costs that might be adjudged against any one of the appellants alone, whereas each appellant should file his individual bond conditioned to pay all costs that may be adjudged against him.

5. That such appeal bond may not be executed, as was done, by a corporation as sole surety thereon.

6. That the American Employers' Insurance Company, the sole security on...