Notargiacomo v. Hickman

Decision Date08 September 1951
Docket NumberNo. 5380,5380
Citation1951 NMSC 69,55 N.M. 465,235 P.2d 531
CourtNew Mexico Supreme Court

John B. Wright, Raton, for appellants.

Robert A. Morrow, Raton, for appellee.

SADLER, Justice.

The single question presented by this appeal is whether the trial judge erred in refusing to honor a statutory affidavit of disqualification filed against him but tried the case and rendered judgment, instead. The judgment went in plaintiff's favor in the sum of $1025.39 for flowers and decorations furnished for a wedding. The recovery rendered was against defendants whose answer pleaded an oral agreement to furnish the decorations in question for the sum of $100. The plaintiff-appellee contends the affidavit of disqualification was not timely filed and further that, even if held to have been so filed, the defendants waived the statute by participating in the trial, notwithstanding they reserved their objection to the court's refusal to honor the affidavit. Plaintiff contends they should have applied to this court for prohibition.

A chronological recital of proceedings below is necessary in order to understand the points argued. The case originates in Colfax County within the Eighth Judicial District. On August 7, 1948, an order was entered on the court records by District Judge Livingston N. Taylor, the resident judge, designating Judge Luis E. Armijo of the Fourth Judicial District and Judge David W. Carmody of the First Judicial District to transact 'all judicial matters arising within the Eighth Judicial District,' until further ordered. The complaint herein was filed on August 21, 1948. It named Mr. and Mrs. J. Dudley Hickman as co-defendants. They filed a joint answer, placing the case at issue, on September 14, 1948. A regular term of the district court for Colfax County convened on October 4, 1948.

On December 1, 1948, the plaintiff duly noticed the case for trial on December 6, following, before Judge Luis E. Armijo at Raton. Promptly after service of this notice, Mrs. Hickman, one of the defendants and the wife of the other, filed a statutory affidavit of disqualification against Judge Armijo pursuant to 1941 Comp. Sec. 19-508. Four days later, December 7, 1948, after a hearing in open court at which he presided, Judge Armijo directed entry of an order holding the affidavit of disqualification 'null, void and ineffectual' to disqualify him. Subsequently, he sat at a trial on the merits, following which on September 22, 1950, judgment was entered against defendants in the amount already stated. This appeal followed.

It is earnestly argued by counsel for defendants that, the resident judge having designated two judges from other districts to preside in all judicial matters arising in the Eighth Judicial District, defendants were unable to say with any certainty or confidence which of them would preside at the trial of this case, at least, not until the case was noticed for trial before the one or the other of them. Hence, neither defendant could file an affidavit of disqualification containing the statutory recital 'that the judge before whom the action or proceeding is to be tried and heard, * * * can not, according to the belief' of affiant, 'preside over the same with impartiality,' etc. The statute reads:

'19-508. Whenever a party to any action or proceeding, civil or criminal, except actions or proceedings for constructive and direct contempt, shall make and file an affidavit that the judge before whom the action or proceeding is to be tried and heard, whether he be the resident judge or a judge designated by such resident judge, except by consent of the parties or their counsel, can not, according to the belief of the party to said cause making such affidavit, preside over the same with impartiality, such judge shall proceed no further therein, but another judge shall be designated for the trial of such cause either by agreement of counsel representing the respective parties, or upon the failure of such counsel to agree, then such facts shall be certified to the chief justice of the Supreme Court of New Mexico, and said chief justice of the Supreme Court of the state of New Mexico shall thereupon designate the judge of some other district to try such cause.' Laws 1933, c. 184, Sec. 1, p. 502; 1941, c. 67, Sec. 1, p. 93; 1947, c. 81, Sec. 1.

'19-509. Such affidavit shall be filed not less than ten (10) days before the beginning of the term of court, if said case is at issue.' Laws 1933, c. 184, Sec. 2, p. 502.

It is to be observed that the second section of the controlling statute provides that the affidavit must be filed not less than ten days before the beginning of the term of court, if the case is at issue. An affidavit...

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14 cases
  • Martinez v. Carmona
    • United States
    • Court of Appeals of New Mexico
    • 30 September 1980
    ...was timely filed. The provisional affidavit was a proper method of protecting a party's substantial right. Notargiacomo v. Hickman, 55 N.M. 465, 235 P.2d 531 (1951) disavowed on other grounds in Beall v. Reidy, 80 N.M. 444, 457 P.2d 376 (1969). But the rule in Notargiacomo remained in the l......
  • State v. Sanchez
    • United States
    • New Mexico Supreme Court
    • 12 January 1954
    ...dilatory tactics. In general support of this conclusion under the particular circumstances of this case, see Notargiacomo v. Hickman, 1951, 55 N.M. 465, 235 P.2d 531; and State ex rel. Prince v. Coors, 1946, 51 N.M. 42, 177 P.2d The only other basis for error in this connection is Art. 6, S......
  • Montano v. Williams, 1970
    • United States
    • Court of Appeals of New Mexico
    • 3 February 1976
  • State v. Compton, 5486
    • United States
    • New Mexico Supreme Court
    • 19 May 1953
    ...McCabe v. Whitehill, 51 N.M. 424, 186 P.2d 514; State ex rel. Lebeck v. Chavez, 45 N.M. 161, 131 P.2d 179. As noted in Notargiacomo v. Hickman, 55 N.M. 465, 235 P.2d 531, too frequently attempts are made to trim or stretch the provisions of our disqualification statute, 1941 Comp., Sec. 19-......
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