State ex rel. Skinner v. District Court of Tenth Judicial Dist. of N.M.

• Decision Date: 15 December 1955
• Docket Number: No. 5972,5972
• Citation: 1955 NMSC 106,291 P.2d 301,60 N.M. 255
• Parties: The STATE of New Mexico ex rel. J. T. SKINNER; Bernice Clavel, Administratrix of the Estate of C. J. Clavel, Deceased; and Viola R. Hirsch, Relators, v. The DISTRICT COURT OF the TENTH JUDICIAL DISTRICT OF the State of NEW MEXICO, sitting within and for the County of Harding, and Hon. Luis E. Armijo, Judge Pro tem. of said Court, Respondents.
• Court: New Mexico Supreme Court

Page 301

291 P.2d 301

60 N.M. 255

The STATE of New Mexico ex rel. J. T. SKINNER; Bernice

Clavel, Administratrix of the Estate of C. J.

Clavel, Deceased; and Viola R. Hirsch, Relators, v. The DISTRICT COURT OF the TENTH JUDICIAL DISTRICT OF the

State of NEW MEXICO, sitting within and for the

County of Harding, and Hon. Luis E.

Armijo, Judge Pro tem. of said

Court, Respondents.

No. 5972.

Supreme Court of New Mexico.

Dec. 15, 1955.

John B. Wright, Raton, for Hirsch.

Gilbert, White & Gilbert, Santa Fe, for Clavel and Skinner.

Robert A. Morrow, Raton, Krehbiel & Alsup, Clayton, for respondent.

LUJAN, Justice.

If ever a proceeding before this Court presented a legal snarl, the record on this prohibition proceeding and the 596 pages of bound record on the appeal in the case of Keirsey v. Hirsch, 58 N.M. 18, 265 P.2d 346, 351, 43 A.L.R.2d 929, out of which the pressent proceeding originates, present one. The relators Skinner and Clavel, joined by Viola Hirsch, all defendants and appellants in above mentioned appeal, seek by a writ of prohibition out of this Court to restrain the respondent judge from proceeding now or ever in hearing a further prosecution of the suit involved on the appeal determined by us, as respondent was in the process of doing, following receipt of mandate.

Now for a brief resume of the facts incident to the appeal as alleged in the present application for writ of prohibition. It appears that on September 10, 1945, C. L. Keirsey, now deceased, filed suit in Harding County of the Tenth Judicial District against the relators, seeking to set aside certain conveyances of real estate from Viola R. Hirsch to the relators Skinner and Clavel; to require Viola R. Hirsch to perfect her title to the real estate in question; and to have her convey the real estate to C. L. Keirsey; and for a determination of damages sustained by plaintiff on account of the loss of use of the premises. On September 28, 1946, an answer was filed to said complaint by the relator Clavel. On October 15, 1946, the relators Skinner and Hirsch filed their answers. On February 9, 1947, during the pendency of the cause, C. L. Keirsey died. Subsequently, Bonnie B. Keirsey, wife of the decedent, was appointed administratrix of said estate. Thereafter, on or about July 19, 1947, and within one year of the death of decedent, she applied to have the cause revived in her name as administrix, but no formal application was made to revive such cause in the names of the heirs at law. The parties stipulated to a revivor in the name of the administratrix, which was accordingly done.

Thereafter, all the issues in the case were fully tried on the merits on the theory that in the administratrix all proper or necessary parties were before the court without any objection whatever on the part of relators going to the lack of indispensable parties.

A final decree was entered by the trial court in favor of the administratrix and an appeal was taken to this Court. Although the question of lack of indispensable parties was never urged in the district court, it was raised for the first time here.

We sustained the lower court in part and reversed it in part. In sustaining the court's decree, we said:

'The foregoing correspondence, together with the deposit by the original plaintiff, C. L. Keirsey, of $500 earnest money with the bank, coupled with the delivery of warranty deed and abstracts to Keirsey's attorney for examination, are, in the opinion of this Court, more than sufficient to sustain the finding of the trial court to the effect that a binding contract was consummated between C. L. Keirsey and Viola R. Hirsch.'

In reversing the lower court, we said:

'It is our judgment that the heirs of the original plaintiff Keirsey were indispensable parties in this action. The determination of the basic issue involved in this suit, namely, the specific enforcement of a contract which will vest in those heirs legal title to the property involved clearly and inevitably affects the interests of the heirs. In this respect and in the respects mentioned above in connection with damages, the rights of the heirs of Keirsey are so closely involved that an adjudication seeking the specific performance of this contract without the heirs before the court makes the trial court's decree one which is beyond its jurisdiction. While the question is not presently before us, it is our opinion that the administratrix is also an indispensable party to this litigation by reason of her obligation to pay the purchase price. * * *

'In view of the foregoing, the judgment is reversed, the cause remanded to the district court with directions to set aside its judgment, and for further proceedings in conformity with the views herein expressed.'

After our opinion was handed down in Keirsey v. Hirsch, supra, the administratrix filed in this Court a motion to amend the original complaint by adding thereto as parties plaintiff the names of the heirs at law of C. L. Keirsey, deceased. We denied the motion. To go back slightly in our chronology of events, it should be here added that simultaneously with moving in this Court on the appeal, following the filing of our opinion therein, the administratrix of C. L. Keirsey, as plaintiff and appellant, anticipating favorable action on the motion to amend the complaint, caused to be filed in said appeal an appearance on behalf of all the heirs at law of C. L. Keirsey, deceased.

Thus the matter stood when the appeal came on for hearing before us on the motion of plaintiff and appellant in said cause, the administratrix of C. L. Keirsey, deceased, to amend her complaint and as well upon her motion for rehearing and that of defendants, Skinner and Clavel, which had been filed in the meantime. Thereupon we entered an order denying each of said motions for rehearing, as well as plaintiff's motion to amend the complaint by adding as co-plaintiffs the heirs at law of C. L. Keirsey, deceased, and in connection with denial of the motion to amend the complaint as indicated, we incorporated as a part of said order the following:

'It is Further Ordered that the appearance filed in this Court and cause December 31, 1953 on behalf of Bonnie B. Keirsey, Robert C. Keirsey, Margarette Ellen Stanford and Martha Ann Cox be and the same hereby is stricken from the record with the same force and effect as though said appearance had never been filed.'

The order, from which we have just quoted, ended proceedings in this Court, except for issuance of the mandate on the appeal and its transmittal to the district court from which appeal had been taken, containing a recital of proceedings here culminating in a reversal of the judgment and ending with the direction to said court, as follows:

'Now, Therefore, this cause is hereby remanded to you with directions to set aside your judgment, and for further proceedings in conformity with the views expressed in said opinion and the judgment of this Court.'

In due course following receipt of the mandate by the district court, the plaintiff in the cause, as administratrix of the estate of C. L. Keirsey, deceased, filed therein a motion to amend the complaint by bringing in as formal parties to the suit the heirs at law of C. L. Keirsey, deceased, naming them, the motion differing in no material respect from the one previously filed in this Court, seeking the joinder of said heirs as coplaintiffs by amendment of the complaint here. The motion recited the fact, already shown, that pursuant to stipulation filed in the cause, prior to appeal, it already had been formally revived in the name of the plaintiff therein as administratrix of the estate of C. L. Keirsey, deceased.

The plaintiff's motion to amend by bringing in the heirs of C. L. Keirsey, deceased, was followed by a pleading designated 'Motion for Judgment on Mandate of Supreme Court,' filed by J. T. Skinner and Bernice Clavel, administratrix of the estate of C. J. Clavel, deceased. The defendants alleged in their motion that since Keirsey, the original plaintiff, had died on February 9, 1947, and no revivor had ever been made as to his heirs or in their name, 'as to any cause of action in said heirs, this cause has long since abated and can not now be revived.'

Their motion ended with the prayer, as follows:

'Wherefore, the defendants, J. T. Skinner and Bernice Clavel, Administratrix of the Estate of C.J. Clavel, Deceased, pray that the judgment herein be vacated and set aside, and that judgment be entered herein dismissing this cause with costs in the sum of $339.64 to the defendants, Viola R. Hirsch, J. T. Skinner, and Bernice Clavel, Administratrix of the Estate of C.J. Clavel, Deceased, and that by said judgment, the appellants herein, together with the sureties upon their supersedeas bond, be released from all liability thereon.'

Thereafter, the matter came on for hearing before the court on plaintiff's motion to amend by bringing in the Keirsey heirs, as formal parties. All parties were represented at the hearing, following which the court entered its order allowing the Keirsey heirs to be joined as party plaintiffs, reciting their entry of appearance as such in which they agreed to be bound by the evidence adduced and proceedings had upon the trial of said cause, the court's order ending with this language, to-wit:

'It is further Ordered that such amendment relate back to the time of the filing of the original complaint herein and the revival of this action in the name of Bonnie B. Keirsey, as administratrix of the estate of Conway Lee Keirsey, deceased, and said action be considered as revived in the name of these heirs as well as said administratrix as parties plaintiff.'

Now, more than ten years after the filing of this suit, more than four years after final decree therein and after appeal prosecuted therefrom and here determined, come the defendants by their counsel asking the aid of prohibition out of this Court to stay all further...