State ex rel. Cardenas v. Swope, 5747

• Decision Date: 24 March 1954
• Docket Number: No. 5747,5747
• Citation: 1954 NMSC 28,270 P.2d 708,58 N.M. 296
• Parties: STATE ex rel. CARDENAS v. SWOPE.
• Court: New Mexico Supreme Court

Page 708

270 P.2d 708

58 N.M. 296

STATE ex rel. CARDENAS v. SWOPE.

No. 5747.

Supreme Court of New Mexico.

March 24, 1954.

Rehearing Denied June 8, 1954.

Joseph L. Smith, Lorenzo A. Chavez and Arturo G. Ortega, Albuquerque, for petitioner.

Rodey, Dickason, Sloan, Mims & Akin, Albequerque, for respondent.

McGHEE, Chief Justice.

The petitioner invokes the original jurisdiction of this court for the granting of a writ of mandamus compelling the respondent to set down for jury trial in Valencia county a workman's compensation case, the claim in such case having been filed in said county, and respondent having granted motion for defendants, the employer and insurer, that jury trial be had upon the cause in Bernalillo county.

By Sec. 26-105, 1941 Comp., it is provided, as at common law, the writ of mandamus shall not issue in any case where there is a plain, speedy and adequate remedy in the ordinary course of law. Thus our first concern is whether petitioner has such other remedy available. Section 57-916, 1941 Comp., provides, inter alia:

'Any final order made or judgment rendered by the court pursuant to the provisions of this act [Workmen's Compensation Act] (Secs. 57-901-57-931) shall be reviewable by the Supreme Court of the state upon appeal or writ of error in the manner prescribed for other cases except that said cause shall be advanced on the calendar and disposed of as promptly as possible. * * '

But, recognizing he could seek review of the order granting change of venue under this provision, petitioner asserts such remedy will result in great delay and expense if the writ be refused, the case tried to a jury in Bernalillo county, and the final judgment there entered reversed here upon appeal with direction for a new trial before a jury in Valencia county. On the other side, respondent argues petitioner cannot know whether he will be aggrieved by such final judgment entered, and that even if he should be so aggrieved, method of appeal is provided where review could be had, with provision the cause shall be advanced on the appellate calendar and disposed of promptly.

While we recognize there is much to be said for respondent's position, and it is supported by the older authorities, if the change of venue was in fact made without authority, we believe the weight of the argument for the use of the writ in this instance is heavily in favor of petitioner.

As was said in State ex rel. Security State Bank of Waldorf v. District Court, 1921, 150 Minn. 498, 185 N.W. 1019, 1020:

'It was early held that the aggrieved party could not appeal from an order denying or granting a motion to change the place of trial, but that such order could be reviewed upon appeal from an order denying a motion for a new trial, or from the judgment. (Citing cases.) The inadequacy of such relief is apparent. The desirability of a speedy and final determination of the proper place of trial, before trial, was commented on in Delasca v. Grimes, 144 Minn. 67, 174 N.W. 523, where the cases are reviewed. A practice which does not permit a final determination of the proper place of trial, except on appeal, when, if there has been error in determining it, the whole trial, no matter if rightly conducted, goes for naught, is intolerable.'

See, also, 35 Am.Jur. (Mandamus) Sec. 271; 55 C.J.S., Mandamus, Sec. 79; Hale v. Barker 1927, 70 Utah 284, 259 P. 928; State ex rel. T. L. Smith Co. v. Superior Court, 1920, 170 Wis. 385, 175 N.W. 927; Head v. Waldrup, 1944, 197 Ga. 500, 29 S.E.2d 561.

We conclude if the nature of the act sought to be compelled lies within the provisions of Sec. 26-104, 1941 Comp., the writ should lie. That section provides:

'It [writ of mandamus] may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station; but though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it can not control judicial discretion.'

In support of the granting of the writ of mandamus petitioner relies upon the provisions of Sec. 57-915, 1941 Comp., as amended, Laws 1943, ch. 15, Sec. 1, the pertinent portion of which reads:

'Venue of claims--Filing and trial.--In the event that an employer has filed in the office of the clerk of the district court the bond or other undertaking or certificate of court which, as provided, relieves him from the necessity of giving the same, such claim may be filed in the office of the clerk of the district court of any county within the judicial district wherein the occupation or pursuit is carried on in which the workman is employed when injured, as the claimant may elect. In the event the employer has not so filed such bond, undertaking, or certificate, such claim may be filed in the office of the clerk of the district court of any county in the judicial district where the injury occurred or where the claimant or such employer resides, as the claimant may elect, * * *.' (Emphasis supplied.)

The section continues with provision if the claimant elects to file his claim outside the district in which he was injured, a general appearance by all of the defendants in the action shall be considered and treated as a waiver of venue and confer upon the court full and complete jurisdiction in the matter, and concludes with a provision for the giving of notice of the filing of the claim.

In resistance of the writ, respondent relies upon the provisions of Sec. 57-913, 1941 Comp., re-enacted and amended in part, Laws 1953, ch. 145, Sec. 1. After setting forth provision for payment of compensation in installments, notice of injury and filing of claims under the act, the section continues:

'Upon the filing of such claims the clerk of such court shall docket the same, styling the workman filing same as plaintiff and the other parties named therein as defendants, and mail certified copy of such claim with a notice under his hand and official seal of the same having been so filed to the employer, insurance carrier, guarantor or surety named in such claim, who shall be allowed twenty (20) days thereafter to answer the same or to settle and adjust the claim thereby made by such workman. In event, prior to the expiration of such time last named, the defendants, or any of them, shall file in the office of such clerk, a written final settlement, adjustment or release signed by such plaintiff and defendants then and in such event a judgment shall under order of court be entered of record in accordance with such settlement, and carrying the same into effect and providing for the execution or executions to be issued thereunder for any future payments therein provided, which judgment shall be satisfied of record if, by such instrument or instruments, it is shown that full payments have already been made. At the expiration of such period of twenty (20) days, if no such instrument of release or satisfaction of such claim has been filed in his office, the clerk of said court shall immediately forward or deliver such claim to the judges of said court for hearing, together with any answer filed therein, unless one of the parties plaintiff or defendant thereto shall have demanded a jury trial of such cause in which event the same shall be tried at the first term thereafter of such court at which the same may be tried, and the hearing thereof expedited in every possible manner.

'The trial of such cause, either by jury or by the court, shall be conducted in a summary manner as far as possible. In event no such answer is filed in the office of such clerk within the time above allowed, or if any such answer so filed contains no denial or substantial defense to such claim, or to some material part thereof judgment shall immediately be rendered in favor of such claimant against such employer and also against any insurer, guarantor or surety who is liable to such workman or to such employer for the payment thereof under the terms of the undertaking provided for in section 156-103 (Sec. 57-903), hereof. Any such insurer, guarantor, or surety shall be entitled to file an answer, setting up any defense to the claim of such...