State Ex Rel.Delgado v. Leahy

• Decision Date: 24 November 1924
• Docket Number: No. 3012.,3012.
• Citation: 231 P. 197,30 N.M. 221
• Parties: STATE ex rel.DELGADO, Sheriff of San Miguel County,v.LEAHY, District Judge.
• Court: New Mexico Supreme Court

30 N.M. 221

231 P. 197

STATE ex rel.DELGADO, Sheriff of San Miguel County,

v.LEAHY, District Judge.

No. 3012.

Supreme Court of New Mexico.

Nov. 24, 1924.

Syllabus by the Court.

Under the provisions of section 1860, Code 1915, the district court has power to determine when the district attorney is disqualified to act in a given case.

Under the provisions of chapter 80, Code 1915, a citation or order to an officer to show cause why he should not be suspended from office until final determination of a removal proceeding. is necessary before the court has power to proceed to hear the matter.

When anything remains to be done to give effect to a judgment of a court in a matter beyond its jurisdiction, the writ of prohibition is available, not only to prevent such further action, but also to undo what has already been done, if the same is necessary to render the writ effective.

Original application by the State, on the relation of Lorenzo Delgado, Sheriff of San Miguel County, against D. J. Leahy, Judge of the District Court of the Fourth Judicial District within and for San Miguel County. Peremptory writ granted.

When anything remains to be done to give effect to a judgment of a court in a matter beyond its jurisdiction, the writ of prohibition is available, not only to prevent such further action, but also to undo what has already been done, if the same is necessary to render the writ effective.

Hanna & Wilson, of Albuquerque, for relator.

O. O. Askren, of East Las Vegas, for respondent.

PARKER, C. J.

An alternative writ of prohibition issued herein, returnable on November 10, 1924. The writ was issued upon a petition setting up the following facts:

On October 25, 1924, there was filed in the district court of San Miguel county, by Thomas V. Truder, assistant district attorney, an accusation charging relator with misconduct in office, and praying that relator be removed from the office of sheriff of said county. On October 25, 1924, Luis E. Armijo, district attorney for said county, filed in said court a written nolle prosequi of said accusation, and a request to dismiss the same, which request the court afterwards denied. Upon the return day relator filed his answer, denying the truth of each and every allegation of the accusation. After the court refused to dismiss the charge upon motion of the district attorney, relator objected to the court proceeding to hear the cause on the merits, either for his removal or suspension from office; as to the former, because no citation had been issued to relator requiring him to show cause why he should not be suspended from office pending final hearing of the cause for removal. Notwithstanding said objection of relator, the court proceeded to hear evidence touching the truth of the facts alleged in the accusation. The court took the matter under advisement until October 31, 1924, at which time the motion of the district attorney was formally overruled, an order suspending relator from office entered, an order appointing Henry Cifre to serve as sheriff, pending the final hearing on the accusation, and an order on relator to turn over all moneys, books, papers, and property belonging to his office to the said Cifre, were made.

Prior to the filing of the motion by the district attorney to dismiss the proceeding, the court had entered an order disqualifying him to act as such officer in the case, and to represent the state, appointing Thomas V. Truder, O. O. Askren, and William G. Hayden, members of the bar, to represent the state, and prosecute the accusation. Some other facts are brought into the case by the return of respondent, in which it is asserted, and not denied, that, prior to the application for an issuance of the alternative writ, the court having appointed Henry Cifre sheriff, and having required him to execute a bond, he had executed the same and the same had been approved by the court, and oath of office had been filed by said Cifre. It further appears from a stipulation on file by the parties that, on the same day Cifre was appointed, filed his bond and oath of office, he demanded and received from the jailers and deputies of relator the possession of the jail and prisoners of the county; that at this time relator was absent from the county, and in no way participated in such surrender, and upon his return to the county he demanded the surrender of such jail and prisoners, which was refused; that at all times relator has refused to obey said order of suspension, and has claimed to be the sheriff of the county; that no demand has been made on relator by said Cifre for the surrender of said office; and that he has possession of the office room of the sheriff in the courthouse, although said Cifre also has keys to the same, obtained when he was deputy under a former sheriff. Respondent demurred to the petition for the writ on the ground that the same failed to point out the further acts about to be performed by the court, and which should be prohibited, which demurrer was overruled. The return was then filed.

Relator filed a demurrer to the return, based upon the proposition that it shows that no citation had been served upon relator to show cause why he should not be suspended, and that consequently the court had no jurisdiction to make the order. Some other general grounds are stated in the demurrer, which are deemed sufficient to raise all of the questions presented. Subsequent to the argument, at the suggestion of the court, the stipulation of facts was filed, so that the court could at once determine the whole case.

[1] 1. At the threshold of the inquiry there is presented the question as to the power of the court to disqualify the district attorney. The matter seems to be controlled by section 1860, Code of 1915, which provides that the district attorney shall represent the state “except in cases * * * where the district attorney or his assistant may for some reason be disqualified or refuse to prosecute, in which case the court shall appoint a competent person to represent the county or state, who shall receive the fees herein provided.”

This section gives the court power to appoint suitable and competent persons to represent the state when the district attorney is disqualified. This necessarily implies the power in the court to determine when the district attorney is in fact disqualified, as was done in this case, and we see no reason to question his action.

This conclusion renders it unnecessary to consider the effect of the motion of the district attorney to dismiss the proceeding, as he had been disqualified by the court, and as other attorneys had been appointed to represent the state. He could no longer act in the premises, and his motion was of no avail.

[2] 2. As before seen, the citation served upon relator required him, simply, to answer the accusation. It contained no notice or intimation that any hearing would he had looking to his suspension from office pending a final hearing of the removal proceeding. Notwithstanding this fact, the court, over objection of relator, proceeded to hear evidence, and made the...