In re Will.

• Court: Supreme Court of New Mexico
• Citation: 64 P.2d 1300,41 N.M. 117
• Docket Number: No. 4252.,4252.
• Parties: In re MORROW'S WILL.
• Decision Date: 16 February 1937

41 N.M. 117

64 P.2d 1300

In re MORROW'S WILL.

No. 4252.

Supreme Court of New Mexico.

Feb. 16, 1937.

Appeal from District Court, Colfax County; M. A. Otero, Jr., Judge.

Proceeding to contest the will and testament of Mary J. Morrow, deceased. From a judgment of the District Court dismissing the proceedings, the contestants appeal. On motion to dismiss appeal.

Motion denied.

Where, by long usage and acquiescence on part of Legislature, right of appeal in matters of probate and will contests had become firmly established, construction of court rule and statute regarding such appeals could not be disturbed where contrary meaning was not so certain as to be practically without doubt. Supreme Court rule 5, § 1; Comp.Laws 1929, § 105-2501.

Hugo Seaberg, of Raton, and Reid & Iden, of Albuquerque, for appellants.

Crampton & Robertson, F. S. Merriau, and Fred C. Stringfellow, all of Raton, for appellees.

PER CURIAM.

The original opinion is withdrawn and the following substituted.

BRICE, Justice.

This is an appeal from a judgment of the district court dismissing a proceeding to contest the last will and testament of Mary J. Morrow, deceased. A motion has been filed to dismiss the case from this court upon the grounds: “That the judgment from which this appeal was taken is not appealable, and that this court is without jurisdiction to review said judgment on appeal because the proceeding in the District Court and in which said judgment was rendered is a statutory proceeding to contest a will. There is no provision, either constitutional, statutory, or by rule of court, granting the right of appeal to this court from a judgment rendered in a district court in such a proceeding. The general statute concerning appeals (Compilation of 1929, Section 105-2501) relates only to ‘civil actions.’ A proceeding to contest a will is a special statutory proceeding and not a ‘civil action.’ Hence no right of appeal exists.”

The Constitution of New Mexico created this court with general appellate jurisdiction, but left to the Legislature the authority to provide for the exercise of such jurisdiction through proceedings by appeal or error. State v. Chacon, 19 N.M. 456, 145 P. 125. No statute has ever been enacted specifically allowing appeals from judgments of the district court in cases appealed to it from the probate court.

Section 1, Rule V, of this court is as follows: “Within three months from the entry of any final judgment in any civil action, any party aggrieved may appeal therefrom to the Supreme Court.”

This rule amended section 105-2501, C. L.1929, which is as follows: “Within six months from the entry of any final judgment in any civil action, any party aggrieved may appeal therefrom to the supreme court of the state.”

The contention is that this case is not a “civil action” within the meaning of the rule and statute, but is a “special proceeding” and that, as no provision has been made by the Constitution, any rule or statute permitting appeals generally in “special proceedings,” or specially in proceedings to contest wills, that such cases are not appealable.

That a code of civil procedure was enacted in 1897 (chapter 73, N.M.Sess.Laws, 1897) applying solely to actions originally filed in the district court in conformity to the procedure therein prescribed in which provision is made for their appeal, but which does not apply to appeals from judgments of the district court entered in proceedings to contest a will, or any other case not coming within the definition of “civil action” in section 1 of the said code.

We will consider the latter contention first, in which, if movant is correct, this court and the Supreme Court of the Territory were without jurisdiction to hear a large per cent. of cases determined by them and recognized from 50 to 75 years as appealable.

Section 105-2501, Comp.St.1929, which was amended by section 1 of Rule V of this court, both previously quoted herein, was section 1 of chapter 43, N.M.Sess. Laws 1917, entitled “An Act Providing Appellate Procedure in Civil and Criminal Cases,” etc., and not limited in its scope to “civil cases,” as defined by section 105-101, Comp.St.1929. More will be said of this act later: But as property rights may be involved we have concluded to review the law, with reference to the right of appeal to the Supreme Court of the territory and this court, from the adoption of the code in 1897 to this date.

A history of the statutes authorizing appeals to this court, from the adoption of the Kearny Code to that of section 1 of rule V of this court, will throw some light on the question.

Statutes substantially like section 1 of rule V of this court, and section 105-2501, Comp.St.1929, which we have quoted, have been in force in the territory and this state since the adoption of the Kearny Code in 1846, Courts and Judicial Powers, section 9 (see Comp.Laws 1884, p. 94) of which is: “Every person aggrieved by any judgment or decision of any circuit court [district court], in any civil case, may make his appeal to the superior court [Supreme Court].”

The first provision enacted by the territorial Legislature for reviewing cases by the Supreme Court, through either appeals or writs of error, at the election of appellants, is section 1 of chapter 10, N.M. Sess.Laws of 1880 (section 2193, C.L. 1884), which is: “(1) All causes, either in law or equity, finally adjudged or determined in the district courts, may be removed into the supreme court of the Territory for review, either by appeal or writ of error.”

The Legislature by section 5 of chapter 66, N.M.Sess.Laws 1891, enacted: “Appeals in equity cases and writs of error in common law cases may be taken at any time within one year from the date of the rendition of final decrees or judgments.”

By chapter 73, N.M.Sess.Laws 1897, the code system of pleading was adopted, most of which is the law today. Section 1 of this act is: “There shall be in this Territory but one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which shall be denominated a civil action, and the party thereto complaining shall be known as the plaintiff, and the adverse party as the defendant.”

Section 161 of the act is: “Any person aggrieved by any final judgment or decision of any district court in any civil cause, may, at his election, take an appeal or sue out a writ of error to the supreme court of the Territory at any time within twelve months after entry of the same.”

Section 1 of the Code of Civil Procedure as adopted in 1896 has never been changed and now appears as section 105-101, C.L. 1929, but section 161 has gone through the following changes:

Section 1, chapter 82, Sess.Laws 1901, provided for appeals and writs of error to review all district court judgments, including those brought to the district court from the probate court or justice of peace court. Also those rendered in special proceedings or upon summary applications and for appeal from certain interlocutory orders and judgments. This act violated the Organic Act and was repealed at the next session by chapter 26, N.M.Sess.Laws 1903. Jung v. Myer, 11 N.M. 378, 68 P. 933.

Here it is well to call attention to a provision in the Act of Congress approved September 30, 1850, establishing the Territory of New Mexico, generally referred to as the “Organic Act,” which provided among other things: “Writs of error, bills of exception, and appeals, shall be allowed in all cases from the final decisions of said district courts to the supreme court, under such regulations as may be prescribed by law.” Organic Act, § 10.

This was re-enacted by Congress by an Act of April 7, 1874, 18 Stat. 27, and remained in effect until statehood. The Legislature of New Mexico enacted laws in 1862 (Act of January 30, 1862) which appear at pages 110 and 176, C.L.1865, section 13 of which is as follows: “Whenever any suit shall be brought before any judge of probate of this territory in accordance with the power granted by the laws now in force, to said courts and the same shall not be settled and either of the parties shall desire to take an appeal the judge of probate shall grant the same in conformity with the provisions of an act approved February 2, 1860, to the District Court to render final judgment thereon without any further recourse or appeal.”

This section of the law does not appear in the Compilations of 1884, and in searching we find printed under the title “List of Laws Enacted by the Legislative Assemblies of the Territory of New Mexico since 1865, including the Revised Statutes of that Year,” appearing on page 1399, C.L.1884, the following: “16. District courts.-All compiled except section 13, invalid by reason of supreme court decision as to probate courts.”

We do not find the decision which held this section invalid, but this is not surprising, as many of the early decisions of the territorial Supreme Court were lost or destroyed. Only about eighty of the opinions written prior to 1880 now exist. The act is clearly in contravention of the provision of the Organic Act, in that it specifially prohibited appeals of probate cases to the Supreme Court, whereas the Organic Act provided that appeals could be taken in all cases from the final decision of the district court. The Legislature was authorized to provide the regulations, but could not extend or abridge the right granted to take appeals or writs of error in all cases from such final judgments. In Re Attorney General, 2 N.M. 49, it was held: “In a territory the constitution and laws of the United States, and especially the organic act of the territory itself, stand exactly in the relation that a state constitution occupies in a state.”

The same question was before the territorial Supreme Court in Jung v. Myer, 11 N.M. 378, 68 P. 933, 934, in which it was held that an act of the Legislature authorizing appeals from certain interlocutory orders was void in...