State ex rel. Gallegos v. Dist. Court

• Decision Date: 22 June 1936
• Docket Number: No. 4180.,4180.
• Citation: 40 N.M. 331,59 P.2d 893
• Parties: STATE ex rel. GALLEGOS et al.v.DISTRICT COURT, NINTH JUDICIAL DIST., et al. (SANDOVAL, Intervener).
• Court: New Mexico Supreme Court

40 N.M. 331

59 P.2d 893

STATE ex rel. GALLEGOS et al.

v.DISTRICT COURT, NINTH JUDICIAL DIST., et al. (SANDOVAL, Intervener).

No. 4180.

Supreme Court of New Mexico.

June 22, 1936.

Original mandamus proceeding by the State of New Mexico, on the relation of Eloisa T. Gallegos, executrix of the last will and testament of Filiberto F. Gallegos, deceased, and others against the District Court of the Ninth Judicial District of the State of New Mexico, and the Honorable Harry L. Patton, Judge thereof, wherein Arturo Sandoval intervened.

Rule to show cause discharged, without prejudice.

SADLER, C. J., and BRICE, J., dissenting in part.

Proponent of will held not entitled to mandamus to require judge of district court, to which administration had been removed, to decide issues involved in contest by person claiming as illegitimate son of testator who had been omitted from will, after such issues had been tried three times before jury with disagreement of jury. Comp.St.1929, § 34-422.

Myron B. Keator, of Tucumcari, and H. A. Kiker, A. M. Fernandez, and Manuel A. Sanchez, all of Santa Fe, for relators.

Carl A. Hatch, of Clovis, James L. Briscoe, of Tucumcari, E. M. Grantham, of Clovis, and T. V. Truder, of Las Vegas, for intervener.Harry L. Patton, of Clovis, pro se.

HUDSPETH, Justice.

The relators invoke the jurisdiction of this court to compel, by mandamus, the Honorable Harry L. Patton, judge of the Ninth judicial district, to decide a cause in equity, which has been tried three times before a jury with the disagreement of the jury in each of said trials, and which cause the district court was, at the time of the filing of the application, holding without decision to determine whether he would decide to decide the issue involved.

The relators are the executrix of the last will and testament of Filiberto F. Gallegos, deceased, and the legatees and devisees named in his will.

The petition for the probate of the will was filed in the probate court of Quay county. Arturo Sandoval, claimant below, intervener in this court, filed his written objection to the probate of the will, claiming that he was the illegitimate son of the deceased and had been omitted from the will. The probate court denied the petition of Sandoval and admitted the will to probate. From that order claimant appealed to the district court, and also, within 90 days, caused the administration of the Gallegos estate to be removed to the district court under the provisions of Comp.St.1929, §§ 34-422, 34-423. Later, the intervener elected to abandon his appeal, and proceed under the removal statute, which provides for a trial de novo in the district court upon request in such cases. In re Montano's Estate, 38 N.M. 355, 33 P.(2d) 906.

It is admitted that the only issues arising upon the claim of Arturo Sandoval are: (a) Is Arturo Sandoval the illegitimate son of Filiberto F. Gallegos, deceased, a pure question of fact; and (b) Did Filiberto F. Gallegos in his lifetime generally and notoriously recognize Arturo Sandoval as his illegitimate son, a mixed question of fact and law.

At the second and third trials the relator objected to the court calling a jury. At the third trial, after intervener's counsel consented, stated that “it didn't make any difference,” the court ruled that it was an equitable trial and announced that he was calling the jury in an advisory capacity. Relators objected and excepted to the calling of the jury. After the jury at the third trial reported that they were unable to reach a verdict, the court said: “However you would have decided this case, that would have been my verdict.” After the discharge of the jury the relator moved the court to proceed to decide the case and enter judgment upon its decision. The court ruled that he would take that motion under advisement.

Relators in their petition for the writ of mandamus state: “That it was then and there, and now is, the plain, clear duty of the court, and the judge thereof, the respondent above named, having tried said cause in equity, and having called a jury only in an advisory capacity, to decide said cause, or to announce that having taken the decision of said cause under advisement, it would in due time announce its decision thereon; and it was and is further the duty of the court upon deciding said cause, to permit counsel for contesting litigants to request findings of fact and conclusions of law in said cause before the entry of judgment; but the court, notwithstanding said clear, plain duty, is holding said cause without a decision thereon, and without announcing that it will ever at any time decide said case; and is, according to its announcement, deliberating upon whether it will proceed to a decision of the case so tried before it, or call for another trial of the issues of fact so made up as aforesaid.”

The response to the rule to show cause reads, in part, as follows, to wit:

“That your Respondent has faith, and always has had faith in the wisdom of the verdict of a jury upon issues of fact; that your Respondent desired the advice of a verdict of a jury upon said issues of fact.

“Your Respondent further states that while, after the discharge of the Jury, Respondents in said case moved the court for the rendition of judgment for Respondents, Claimant has never so moved.”

The material facts are not in dispute. The costs of the three trials to the county of Quay amount to $2,249.24. The case was first tried in the district court in December, 1933. The estate is large and consists of encumbered live stock and ranch lands. Relators complain that they are being kept out of their inheritance and may lose a large part because the secured creditors are threatening foreclosure proceedings; the executrix being unable to refund said indebtedness because of this litigation. Relators also represent that it has cost the estate about $1,000 for each trial, that they have had to bring witnesses from California and Texas, and that many of the witnesses are old and some have died during the pendency of the cause.

A question strenuously argued here, which gave the trial court much concern, and, notwithstanding his ruling, evidently colored his thoughts throughout his consideration of the case, is as to the right of intervener to insist on a trial by jury. Intervener maintains that he is entitled to a jury trial under Comp.St.1929 § 154-209, which reads as follows: “Probate-Procedure when will found invalid. If the probate judge finds the due execution and validity of the will to be proved, he shall render a judgment approving it as the last will and testament of the decedent, which shall be entered of record in the case. If such judge shall be of the opinion that the will is not valid, he shall endorse such opinion on the will and transmit the same, with all the testimony taken before him, and a transcript of the proceedings, to the clerk of the district court for his county. The matter shall then stand for hearing de novo in the district court the same as on appeal, but either party, on demand therefor, shall have the right to a trial by jury on such appeal; and the judgment of the district court declaring the will valid or void, shall, when the same becomes final, be certified by the clerk of the district court, to the clerk of the probate court, and shall be entered of recorded in the latter court as a part of the proceedings in the case. (L. '89, Ch. 90, § 11; C.L. '97, § 1983; Code ' 15, § 5879.”

This section of the statute was considered in the case of In re Riedlinger's Will, 37 N. M. 18, 16 P.(2d) 549, a case appealed to the district court under the provisions of Comp. St.1929, § 34-420, and involving the due execution of a will. No such question is involved here. The order of the district court dismissing intervener's appeal reads, in part, as follows, to wit:

“That said Arturo Sandoval admits the due execution of said will, and that his claim against said estate is based upon the provisions of Sec. 154-112 of the 1929 Codification, as a pretermitted heir.”

“It is therefore ordered that the appeal of said Arturo Sandoval from the order of the Court admitting said will to probate be and the same is hereby dismissed; and that the administration of said estate proceed in this court upon said removal from the Probate Court.”

[1] This case falls within the rule laid down in Sheley v. Shafer, 35 N.M. 358, 298 P. 942, where we held that when the administration of an estate is removed from the probate court to the district court under the provisions of Comp.St.1929, § 34-422, it stands on the docket of the district court as a proceeding in equity, and that a claimant is not entitled to a jury trial as a matter of right. We see no reason for changing the rule.

Another disputed question is as to the right of intervener to introduce additional evidence in case the trial court decides to adjudicate all issues without calling another jury. This is a matter within the discretion of the chancellor. The Supreme Court of West Virginia, in Bartholow v. Hoge et al., 71 W.Va. 427, 76 S.E. 813, said: “Defendants say that it was error for the court, after taking the cause for decision, to direct that further proof be taken. This action would seem to be within the inherent power of a court of chancery. We know of no good reason why a chancellor, in the furtherance of justice between the parties, may not call for additional evidence in order that extremely doubtful points of fact may be elucidated and more intelligently decided. ‘The matter rests largely in the discretion of the chancellor, who may reopen a case where some additional fact or inquiry is indispensable to enable him to make a satisfactory decree.’ Fletcher on Equity Pleading and Practice, 691. Lord Bacon, in formulating his Ordinances in Chancery, provided for the examination of witnesses after publication of the evidence, to be taken by special order ad informandum conscientiem judicis. The practice in proper...