In re Henriques.

• Decision Date: 31 January 1889
• Citation: 21 P. 80,5 N.M. 169
• Parties: In re HENRIQUES.
• Court: New Mexico Supreme Court

5 N.M. 169

21 P. 80

In re HENRIQUES.

Supreme Court of the Territory of New Mexico.

Jan. Term, 1889.

Appeal from district court, Valencia county; BRINKER, Judge.

In such case the probate court is the judge of the weight of the evidence, and its decision on any issue of fact is not reviewable upon certiorari, on appeal, where there is any competent evidence to support it.

Mr. Warren, for appellant.

REEVES, J.

This is an appeal from the action of the district court of Valencia county in quashing the writ of certiorari and dismissing the case at the costs of the appellant. It appears from the petition of the appellant that he was appointed administrator de bonis non of the estate of Manuel A. Otero, deceased, by the probate court of Valencia county, on the 10th day of September, 1883. Afterwards, on the 21st day of October, 1885, the probate court revoked and canceled his letters of administration. From this action of the probate court Henriques prayed an appeal to the district court, which was granted. The probate court fixed the amount of the bond to be given by Henriques to stay the proceedings upon the order of the court revoking his letters at $150,000. Appellant alleges in his petition for a writ of certiorari that the evidence before the probate court was insufficient to justify the action of the court in revoking his letters. He claims that his appeal operated to stay the proceedings of the court, or, in any event, he was entitled to a stay of such proceedings upon the filing of such a bond as would reasonably be sufficient to secure all damages and costs which might accrue to the estate of the intestate, Manuel A. Otero. He charges that the order fixing the amount of the bond at $150,000 was made for the purpose of depriving him of his office of administrator, by making it impossible for him to furnish a bond in that amount; that he was able and willing to give such bond as should reasonably be required of him to stay the proceedings. He denies the jurisdiction of the court to require a bond of $150,000. He states that the total cash value of the personal assets of the estate did not exceed $25,000; that he was under a good and sufficient bond in the sum of $100,000 for the safe custody and disposition of the estate, and prays for a writ of certiorari to remove the cause from the probate court into the district court. Afterwards, on the 25th day of November, 1885, the writ of certiorari was issued according to the prayer of the petition, and bond given by the petitioner in the sum of $25,000 to obtain a stay of the proceedings upon the order of removal, and conditioned to prosecute the writ without delay, and with effect, and to pay all costs and damages which might be adjudged against him by reason of the stay of such proceedings. Thereafter, at a regular term of the district court, on the 12th day of April, 1886, the writ of certiorari was quashed by the court, and the cause dismissed. From this judgment of the district court the appellant prayed and obtained an appeal to the supreme court, and, having filed his affidavit and bond, the judgment was stayed until the cause should be decided by the supreme court.

The appellant assigns as errors to his prejudice in this cause the action of the district court in sustaining the motion to quash the writ of certiorari, and dismissing the cause. First, that the writ of certiorari was properly granted, and was the appropriate remedy to reach and review the wrongful action of the probate court, and the judge thereof; second, that the persons who made this motion were not parties to the record, and had no standing in court which entitled them to be heard on such a motion; third, that if the motion was properly made, it amounted in law to a demurrer to the petition, and admitted the truth of all the allegations of the petition for certiorari; fourth, that the allegations of the petition for certiorari, if true, entitled the petitioner to the relief demanded; fifth, the order of the probate judge, requiring petitioner to give any bond to stay the execution of the order removing him, was and is without jurisdiction, and void; sixth, the action of the probate judge in requiring the petitioner to give a bond in the sum of $150,000 to stay the execution of an order removing him, was an abuse of discretion, which the appellant was entitled to have reviewed in the district court by certiorari. The authorities relied on to sustain the foregoing propositions are the following: By the statute of this territory (Comp. Laws, 1884, § 531) it is provided: “The district courts, in the several counties in which they may be held, shall have power and jurisdiction as follows: *** Third. Appellate jurisdiction from the judgments and orders of the probate judges and justices of the peace in all cases not prohibited by law, and shall possess a superintending control over them.” And by section 563 it is provided: “Appeals from the judgments of the probate court shall be allowed to the district court in the same manner, and subject to the same restriction, as in case of appeals from the district to the supreme court.” Appeals from the district court to the supreme court are regulated by sections 2185-2187; and by section 2187 it is provided: “Upon the appeal being made, the district court shall make an order allowing the same. Such allowance shall stay the execution in the following cases, and no others: First. When the appellant shall be executor or administrator, and the action by or against him as such.” It is insisted that the appellant in this case is an administrator, and that the proceeding to remove was against him as such, and that he, on the facts stated in the petition, was entitled to an appeal and a stay of execution without the execution of any bond.

In the case of Wade v. Society, 4 Smedes & M. 670, the distinction in the cases where a party sues as administrator, or executor, or personally, is clearly shown. The court said: “An executor is entitled to an appeal without surety when the judgment or decree is to affect only the assets of the deceased in the hands of the executor. It is otherwise where a personal...