State ex rel. Clinton Realty Co. v. Scarborough
| Decision Date | 30 June 1967 |
| Docket Number | No. 8168,8168 |
| Citation | 429 P.2d 330,1967 NMSC 152,78 N.M. 132 |
| Parties | STATE ex rel. CLINTON REALTY COMPANY, a corporation, Petitioner, v. Hon. James M. SCARBOROUGH, District Judge, the District Court of the First Judicial District of the State of New Mexico, Gavin Maloof & Co., New Mexico Selling Company, Richard Distributing Company, Southwest Distributing Company, State Distributors, Inc., the Pecos Sales Company, Max M. Gonzales, Commissioner, Bureau of Revenue of the State of New Mexico, Joseph A. Armijo, Chief of Division of Liquor Control of the Bureau of Revenue of the State of New Mexico, and Arthur Sanchez, Chief Liquor Auditor, Division of Liquor Control of the Bureau of Revenue of the State of New Mexico, Respondents. |
| Court | New Mexico Supreme Court |
A mortgage covering the Holiday Inn Motel located in Clovis was foreclosed in an action in the Curry County district court. In connection with this foreclosure, the court's receiver took possession of a liquor dispenser's license held in the name of the motel's former owners, Leon and Ruth Beaver, and sold it together with the motel property to Clinton Realty Company. Creditors of Leon and Ruth Beaver, in connection with their operation of the liquor license, sought and were refused permission to intervene in this foreclosure action. Thereafter, these creditors secured a writ of mandamus from the district court of Santa Fe County directing the Chief of the Division of Liquor Control to satisfy himself that all creditors of Leon and Ruth Beaver, in connection with their operation of the liquor license, were paid before approving a transfer of the license. Upon application by Clinton Realty Company, this court issued an alternative writ of prohibition to the district court of Santa Fe County to stay its enforcement of the writ of mandamus. The petitioner here was not a party to the mandamus action. He asserts he was an indispensable party and, accordingly, challenges the jurisdiction of the Santa Fe district court to proceed to judgment.
It was settled in this jurisdiction as early as 1924 that all persons whose interests will necessarily be affected by any judgment or order in a particular case are necessary and indispensable parties, and that the court cannot proceed to a judgment without such party. American Trust & Sav. Bank of Albuquerque v. Scobee, 29 N.M. 436, 453, 224 P. 788. That position has been consistently followed by this court. Burguete v. Del Curto, 49 N.M. 292, 163 P.2d 257; State ex rel. Del Curto v. District Court, 51 N.M. 297, 183 P.2d 607; Sullivan v. Albuquerque Nat'l Trust & Sav. Bank, 51 N.M. 456, 188 P.2d 169; Keirsey v. Hirsch, 58 N.M. 18, 265 P.2d 346, 43 A.L.R.2d 929; Swayze v. Bartlett, 58 N.M. 504, 273 P.2d 367; State ex rel. Skinner v. District Court, 60 N.M. 255, 291 P.2d 301; Sellman v. Haddock, 62 N.M. 391, 310 P.2d 1045; State ex rel. Reynolds v. W. S. Ranch Co., 69 N.M. 169, 364 P.2d 1036; State Game Comm'n v. Tackett, 71 N.M. 400, 379 P.2d 54; Rule of Civil Procedure 19 (§ 21--1--19, N.M.S.A.1953).
Further, State Game Comm'n v. Tackett, supra, held that where prohibition would have issued as a matter of right if the application could have been heard by us prior to entry of the district court's order, we should exercise our right of superintending control. Prohibition appears to us an appropriate remedy in this case. State ex rel. Townsend v. Court of Appeals, 78 N.M. 71, 428 P.2d 473, decided May 29, 1967.
It is apparent that the judgment in mandamus was entered in reliance upon the requirements of § 46--5--15(B), N.M.S.A.1953, the pertinent portion of which reads:
To argue that petitioner was not, under the circumstances here present, a 'person whose interests will necessarily be affected by the judgment,' within the definition of an indispensable party would be to ignore the obvious. Under this statute, the practical effect of the action in mandamus is as substantial as would be a money judgment rendered against the petitioner individually. It precludes the transfer of the license he purchased until the debts are paid.
It becomes at once apparent that this petitioner, as the purchaser of the liquor license under an order of the district court of Curry County, is an indispensable party to the mandamus action in Cause No. 36205, Santa Fe County, and that court is without jurisdiction to proceed in petitioner's absence. The situation here, as in State Game Comm'n v. Tackett, supra, is one where the court completely lacks jurisdiction to hear or try any issue in the cause without the presence of Clinton Realty Company as a party thereto. The judgment entered in Cause No. 36205 is a complete nullity. State Game Comm'n v. Tackett, supra.
Petitioner also calls attention to the provisions of subparagraph F of § 46--5--15, N.M.S.A.1953, and contends that any right of the creditors to demand payment as a prerequisite to the transfer of the...
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