In re Heiman's Will.Wilson v. Ruth

• Decision Date: 05 September 1931
• Docket Number: No. 3563.,3563.
• Parties: In re HEIMAN'S WILL.WILSONv.RUTH et al.
• Court: New Mexico Supreme Court

35 N.M. 522

2 P.2d 982

In re HEIMAN'S WILL.WILSON

v.RUTH et al.

No. 3563.

Supreme Court of New Mexico.

Sept. 5, 1931.

Syllabus by the Court.

Fact whether district court on appeal from probate court considered affidavit filed in opposition can only be shown by making affidavit part of certified record (Comp. St. 1929, §§ 34-420, 34-421; App. Proc. Rule 11, par. 4).

The fact as to whether the court below, in passing upon a motion to dismiss, considered affidavit filed in opposition to such motion can only be made to appear by making such affidavit part of the record, certified by the judge.

Adoption of procedural statute by reference includes law in force when proceeding is taken, where statute refers generally to law relating to subject under consideration.

Adoption of a procedural statute by reference includes law in force when proceeding is taken, where adopting statute refers generally to law relating to subject under consideration.

On appeal to district court from probate court, written direction to probate court clerk in nature of præcipe held not jurisdictional (Comp. St. 1929, § 34-421; App. Proc. Rule 14, § 3).

In appeal from judgment of probate court, written directions to clerk of probate court in nature of præcipe under provisions 1929 Comp. § 34-421, held not jurisdictional.

Motion in district court to dismiss appeal from probate court on nonjurisdictional ground constitutes “general appearance.”

Moving for dismissal in district court on ground other than lack of jurisdiction constitutes a general appearance.

Appeal from District Court, Colfax County; Armijo, Judge.

In the matter of the last will and testament of Samuel Heiman, deceased. From a judgment of the district court, dismissing an appeal by L. S. Wilson, guardian of the heirs of the decedent, from an order of the probate court allowing certain claims against the estate, opposed by Ernst Ruth, administrator with the will annexed of the estate, and others, the guardian appeals.

Judgment of the district court reversed, and the cause remanded.

Adoption of a procedural statute by reference includes law in force when proceeding is taken where adopting statute refers generally to law relating to subject under consideration.

L. S. Wilson, of Raton, for appellant.

F. S. Merriau, Fred J. Voorhees, and Daniel K. Sadler, all of Raton, for appellees.

HUDSPETH, J.

This is an appeal from a judgment of the district court of Colfax county, dismissing an appeal from the order of the probate court allowing claims against the estate, by L. S. Wilson, guardian of the heirs of the decedent. See 25 N. M. -, 290 P. 742, where motions were disposed of.

[1] 1. Copied in the record proper there is an affidavit of appellant which appears to have been filed in this cause in the district court on the 19th day of August, 1929. This affidavit is specified by appellant as part of the record to be brought up under rule XI, paragraph 4, authorizing a partial record. The first part of this affidavit is a statement with reference to the service of notice of the appeal from the probate court on the executor. Our statute authorizes the service of process, with certain exceptions, by private parties and the proof thereof by affidavit. This part of the affidavit might be considered in the nature of an officer's return of service. Batchelor v. Palmer et ux., 129 Wash. 150, 224 P. 685. The transcript fails to show that this affidavit was brought to the attention of the trial court. Under these circumstances the remainder of the affidavit, which is an attempt to excuse certain defects in the procedure in taking the appeal from probate court, cannot be considered here for any purpose. Miller v. Oskins, 33 N. M. 345, 267 P. 62; Henderson v. Dreyfus, 26 N. M. 542, 191 P. 442; Weeks v. Hays, 55 Fla. 370, 45 So. 987; Jeffords et al. v. Young et al., 197 Cal. 224, 239 P. 1054, 1055; Quartz Gold Mining Co. v. Patterson et al., 53 Or. 85, 96 P. 551; Cody v. Filley et al., 4 Colo. 436; Tindall v. Chicago & Northwestern Ry. Co., 200 Ill. App. 556.

The Supreme Court of California in Jeffords v. Young, supra, said: “The clerk's transcript indicates merely that certain papers were filed in his office and the date of their filing. It does not indicate, and the clerk is not competent to certify for purposes of review upon appeal, what papers were presented to and considered by the trial judge in support of or in opposition to a given motion.”

And in Tindall v. Chicago & Northwestern Ry. Co., supra, the court said: “If a defeated party could be permitted to make such matters a part of the record by ex parte affidavits, then on a motion for a new trial affidavits might be filed to show what rulings the court made upon the evidence and the instructions.”

[2][3] 2, 3. The transcript contains the motion to dismiss, in which all the appellees joined. The order of the district court sustaining this motion shows that the court acted upon two legal propositions, viz.: (1) Failure to issue and serve citation on the claimants; (2) the failure to file with the clerk of the probate court written directions as to papers and records to be transmitted to the district court, pursuant to the provisions of chapter 99, Sess. Laws 1915, 1929 Comp. §§ 34-420 and 34-421.

1929 Comp. § 34-420, provides that citation shall be issued and served upon all parties interested where the appeal is taken after the adjournment of the term, but does not specify the time within which such citation shall be served or by whom it shall be served. 1929 Comp. § 34-421, provides, among other things: “That any person aggrieved by any decision of any probate court of any county in this state, may appeal to the district court of the county in which such decision may be rendered, by filing within ninety days of the rendering of any such decision with the clerk of such probate court a motion praying such appeal and a bond, with two or more sureties, conditioned that such appellant shall prosecute his said appeal with diligence and effect, and pay all costs of...