State ex rel. Lebeck v. Chavez

Decision Date23 April 1941
Docket NumberNo. 4598.,4598.
Citation45 N.M. 161,113 P.2d 179
PartiesSTATE ex rel. LEBECK et al.v.CHAVEZ, Judge.
CourtNew Mexico Supreme Court


Original prohibition proceeding by the State of New Mexico, on the relation of Albert O. Lebeck and Florence Lebeck, against the Honorable David Chavez, Jr., Judge of the District Court of the First Judicial District within and for the County of McKinley and State of New Mexico.

Alternative writ of prohibition discharged.

Where district judge acted adversely on affidavit of disqualification filed by persons seeking to intervene as defendants in action to foreclose paving liens, and granted motion of such persons to be substituted for certain defendants and additional motion of such persons to require plaintiffs to give security for costs, and thereafter such persons took an appeal which they subsequently attempted to abandon by filing of voluntary dismissal, and such persons thereafter filed writ of prohibition against district judge without securing order of district judge dismissing appeal as provided in Supreme Court rule, the securing of such order would not have required judge to have acted in a manner concerning such persons, or to rule for or against such persons, so as to bar such persons from any relief to be sought through writ of prohibition. Supreme Court Rules, rule 11.

Nils T. Kjellstrom, of Gallup, for petitioners.

H. C. Denny and H. S. Glascock, both of Gallup, for respondent.

MABRY, Justice.

There is involved here the question whether efforts of petitioners to disqualify a District Judge were timely and appropriately made, prosecuted and relied upon. The pertinent questions raised are: (a) Was the affidavit of disqualification timely filed? (b) Is the writ of prohibition the appropriate or the proper remedy? (c) Do the circumstances of the parties complaining having moved thereafter, and when the court refused to disqualify, to require of the judge further judicial acts, constitute a waiver of the disqualification charged?

On June 30, 1938, there was filed a complaint in the District Court of McKinley county cause No. 5547, wherein the Maccabees, a fraternal corporation, suing for itself and “others similarly situated,” including one V. F. Diggs and Allen Rollie, were plaintiffs, and M. C. Bingham, Bernice Bingham, his wife, Albert O. Lebeck, Florence Lebeck and numerous others were defendants. The purpose of the suit was to foreclose a large number of separate paving liens in paving district No. 3 of the town of Gallup, in McKinley county. The complaint in foreclosure contained several paragraphs and involved, as to each paragraph, various and sundry lots of real estate and different defendants. The paragraphs of the complaint material to the determination of this cause are paragraphs numbered 23, 34, and 37. It was alleged in Par. 23 that Henry Chee Dodge and wife, Yitnanba Dodge, were the owners of certain real estate upon which there remained due as assessment for paving the sum of some $800.

In Par. 34, Albert O. Lebeck and Florence Lebeck are likewise alleged to be the owners in fee of certain other real estate upon which an unpaid paving assessment of $68 was due and unpaid; and, in Par. 37, it is alleged that the said Lebecks were further indebted in the sum of some $1,300 for paving assessments upon other property owned by them. On July 20, 1938, said defendants Lebeck filed their answers. No further pleadings were filed in the case until November 2, 1939, at which time the said V. F. Diggs and Allen Rollie filed their petition to intervene as plaintiffs in said cause in order to control the litigation thereof, but no hearing was had nor action taken upon said petition; but, a like petition dated April 8, 1940, thereafter was favorably acted upon on April 12, 1940. Then, on January 26, 1940, the petitioners, Albert O. Lebeck having purchased in the month of September, 1938, the property described in Par. 23 as belonging to Dodge and wife, filed their petition to intervene and at the same time answered the complaint as it affected such property so described in said Par. 23. That said cause stood upon the pleadings as herein described until the 8th day of April, 1940, at which time the said V. F. Diggs and Allen Rollie (these parties to be hereinafter referred to as “Diggs”), as above noted, filed another petition for authority to control the litigation as parties plaintiff. An order so authorizing such control was entered on April 12, 1940, as above stated. Then, on May 13, 1940, the said Diggs filed a notice of hearing and for final disposition of the cause as to the said Lebecks, and as the case related to property described in all three paragraphs, 23, 34 and 37. The date for hearing was fixed for May 27, 1940. The petition of the Lebecks for the right to intervene was not yet disposed of by the court.

Then, on May 17, Florence Lebeck filed an additional petition to intervene as to the property described in Par. 23, and then and there both the Lebecks filed their affidavits of disqualification, proper as to form, directed to the eligibility of Hon. David Chavez, Jr., the presiding judge of the 1st judicial district, and of McKinley county, under provisions of Chap. 184 of the Laws of 1933.

The pertinent parts of this act provide:

Section 1. Whenever a party to any action or proceeding, civil or criminal, shall make and file an Affidavit that the Judge before whom the action or proceeding is to be tried or heard cannot, according to the belief of the party to said cause making such affidavit, preside over the same with impartiality, such judge shall proceed no further therein, but another Judge shall be designated for the trial of such cause either by agreement of counsel representing the respective parties or upon the failure of such counsel to agree, then such facts shall be certified to the Chief Justice of the Supreme Court of the State of New Mexico, and the said Chief Justice of the Supreme Court of the State of New Mexico, shall thereupon designate the Judge of some other District to try such case.

Sec. 2. Such affidavit shall be filed not less than ten (10) days before the beginning of the term of Court, if said cause is at issue. ***”

On May 18, 1940, defendants Lebeck filed their motion to strike the notice of hearing so scheduled for May 27, 1940, as to the paragraph relating to their property, on the ground that said cause was not ripe for hearing, in that the petition of Albert O. Lebeck to intervene, which was filed January 26, 1940, had not as yet been disposed of, and because no disposition likewise had been made of the original petition of intervention filed by V. F. Diggs on November 2, 1939. On May 27, 1940, said cause came on for hearing; the presiding judge refused to disqualify, on the ground, among others, that the affidavit of disqualification came too late, heard the motion to strike the notice of hearing filed by defendants Lebeck on May 18, 1940, as aforesaid. Thereupon, the said Lebecks moved the court that they be substituted for said defendants Dodge and wife and that their answers filed on May 18th, at the time of filing their petitions to intervene, be taken as their answers in the case as respects Par. 23 of the complaint, and this motion was by the court allowed. And, thereafter, and on the same day, petitioners presented to the respondent their written motion to require of plaintiffs to give security for costs. This motion was allowed without objection from plaintiffs and a cost bond was thus required.

The said defendants Lebeck, through their attorney Nils T. Kjellstrom, thereafter and on June 6, 1940, prayed and were granted an appeal to this court; and this appeal the said Lebecks thereafter attempted to abandon by the filing of a voluntary dismissal, and thereafter this petition for writ of prohibition was filed. The motion to abandon the appeal was never acted upon by the District Judge, it is admitted. The relator urges that an appeal is still pending and relies upon the fact as an additional point in urging the irregularity of much of petitioners' proceedings. This point will be noticed further.

[1][2] Was the cause at issue as between plaintiffs and the defendants, Albert O. Lebeck and Florence Lebeck, at the time the affidavits of disqualification were filed? It is immaterial that other matters, as between other parties, had been determined unless such matters affected directly the said defendants. Counsel for respondent concedes, and we hold, that each cause of action set out in the many paragraphs of the complaint are separate and distinct causes of action separately affecting different defendants and different properties. Petitioners concede that if at the time of filing the affidavit the causes relating to their property were at issue as between plaintiffs and themselves, they would not be entitled to this writ. But this fact they deny.

See. 105-1501, N.M.Comp.Laws 1929, provides that “any person who has an interest in the matter in litigation in the success of either of the parties to the action, or against both, may become a party to an action between other persons, * * either before or after issue has been joined in the cause and before the trial commences.” Sec. 105-1502 provides that “the court shall determine upon the intervention at the same time that the action is decided, and the intervenor shall have no right to delay, and if the claim of the intervenor is not sustained, he shall pay all the costs of the intervention.” By Sec. 105-1503 it is provided, among other things: “The intervention shall be by petition which must set forth the facts * *. If such petition is filed during the term, the court shall direct the time in which an answer shall be filed thereto.”

[3] It is not disputed that petitioners, as to any interest which they might have in the premises sought to be foreclosed and to which action they were not made party defendants, would be entitled reasonably to...

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