Mozley v. Helmick

• Decision Date: 30 January 1933
• Docket Number: No. 3750.,3750.
• Citation: 18 P.2d 1024,37 N.M. 97
• Parties: MOZLEY et al.v.HELMICK, District Judge, et al.
• Court: New Mexico Supreme Court

37 N.M. 97

18 P.2d 1024

MOZLEY et al.

v.HELMICK, District Judge, et al.

No. 3750.

Supreme Court of New Mexico.

Jan. 30, 1933.

Syllabus by the Court.

Where court is proceeding within its jurisdiction invoked by two of three coplaintiffs, prohibition will not issue to restrain further proceedings because, treated as sole complaint of third coplaintiff, court would be without jurisdiction.

Presumption of regularity attending district court's action impels Supreme Court, in prohibition proceedings, to adopt view sustaining rather than one defeating district court's jurisdiction, where either view is permissible.

As regards right to prohibition, even if appeal deprived district court of jurisdiction to grant judgment debtor injunction restraining creditor from making execution sale under judgment appealed from, court could enjoin sale at instance of property claimants joining with judgment debtor.

1. If the district court in a given suit is proceeding within the jurisdiction invoked by two of three coplaintiffs, writ of prohibition will not issue to restrain further proceedings in the cause by reason of the mere circumstance that, treated as the sole complaint of the third coplaintiff seeking the same relief, the court would be without jurisdiction of the subject-matter.

2. Where the actions of the district court in a pending cause may be related to either of two views, under one of which it is proceeding without and under the other within its jurisdiction, the presumption of regularity attending its actions impels us to adopt the view which sustains, rather than the one which defeats, its jurisdiction.

Original prohibition proceedings by Charles A. Mozley and others against Milton J. Helmick, District Judge of the Second Judicial District of New Mexico, and others.

Alternative writ recalled and petition dismissed.

Presumption of regularity attending district court's action impels Supreme Court, in prohibition proceedings, to adopt view sustaining rather than one defeating district court's jurisdiction, where either view is permissible.

Joseph Gill, of Albuquerque, for petitioners.

Geo. C. Taylor, of Albuquerque, for respondents.

SADLER, J.

This is an original proceeding in this court for writ of prohibition directed to Milton J. Helmick, as Judge of the district court of Bernalillo county, J. S. Brown Mercantile Company, Cudabac & Co., and George Potteiger, as respondents, to restrain respondents from further proceeding in a certain cause pending in the district court of said county. Upon the filing of the petition herein, the alternative writ was issued, and now, after the filing of briefs and the presentation of arguments, the matter is before us for final disposition.

The facts out of which the proceeding arises, as disclosed by the petition for prohibition and returns thereto, are these: In a suit distinct from that in which proceedings are sought to be restrained by prohibition, one Charles A. Mozley, as plaintiff, recovered personal judgment against George Potteiger, as defendant, with foreclosure of a mechanic's lien on lot 2 in block 8 of the Alvarado addition to the city of Albuquerque. This judgment was signed and entered on August 31, 1931. It authorized immediate execution upon the money award contained therein, allowed $50 as attorney's fees to plaintiff for services of his attorney in foreclosing the mechanic's lien, and in accordance with the statute applicable, section 1 of chapter 149, New Mexico Session Laws of 1931, contained a stay order against the sale under the foreclosure for the period of sixty days from entry of the judgment.

On October 1, 1931, more than thirty days after entry of the aforesaid judgment, the defendant filed a motion in the cause to set aside said judgment, urging in support thereof, among other things, that the court had improperly rendered personal judgment for attorney's fees; that the warrant for immediate execution on the personal judgment of which plaintiff was seeking to avail himself by a levy on certain personal property of defendant was wholly inconsistent with, and contradictory to, the sixty-day stay order upon the sale under foreclosure contained in the same judgment.

After hearing on the motion, and on October 8, 1931, the court, upon the ground that the claimed irreconcilable and contradictory provisions in the judgment constituted an irregularity, entered its order vacating said judgment “for the purpose of entering a correct decree herein,” and as a part of the same order recalled the execution issued upon said judgment, and declared the same void.

Thereupon the plaintiff Mozley prayed and was granted an appeal to the Supreme Court from the order setting aside said judgment, with supersedeas in the sum of $800, which was furnished, the appeal order being conditioned that plaintiff, after filing supersedeas, might proceed with his execution theretofore levied. The appeal was duly prosecuted in this court, and our decision in the cause entitled Mozley v. Potteiger, 37 N. M. 91, 18 P. (2d) 1021, is handed down contemporaneously with this opinion.

The foregoing recitals portray the status of the suit of Mozley v. Potteiger, with one possible exception, at the time of the institution of the suit in which proceedings are herein sought to be prohibited. The possible exception mentioned is this: Presumably the plaintiff Mozley, through his attorney, was proceeding to advertise an execution sale of the property levied upon as aforesaid. Thereupon Potteiger, the defendant in the above-mentioned suit, joined by J. S. Brown Mercantile Company and Cudabac & Co., as coplaintiffs, instituted a separate suit in the district court of Bernalillo county against said Charles A. Mozley, Joseph Gill, as his attorney and claimed assignee, and Felipe Zamora, as sheriff of said county, seeking an injunction to restrain the execution sale about to be held under the authority of the judgment...