State ex rel. Clinton Realty Co. v. Scarborough, 8168

• Citation: 429 P.2d 330, 1967 NMSC 152, 78 N.M. 132
• Case Date: June 30, 1967
• Court: Supreme Court of New Mexico

Page 330

429 P.2d 330 78 N.M. 132 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. No. 8168. Supreme Court of New Mexico. June 30, 1967.

[78 N.M. 133]

Page 331

Lynell G. Skarda, Clovis, for petitioner.

Boston E. Witt, Atty. Gen., Tom Overstreet, Asst. Atty. Gen., Santa Fe, for Joseph A. Armijo.

Ben F. Roybal, Albuquerque, for Max M. Gonzales.

O. R. Adams, Jr., Albuquerque, for Wholesalers.

OPINION

NOBLE, Justice.

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 [78 N.M. 134]

Page 332

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...