State Ex Rel. Sweeney v. Second Judicial Dist. Court

• Decision Date: 09 September 1912
• Citation: 127 P. 23,17 N.M. 282
• Parties: STATE EX REL. SWEENEYv.SECOND JUDICIAL DISTRICT COURT ET AL.
• Court: New Mexico Supreme Court

17 N.M. 282

127 P. 23

STATE EX REL. SWEENEY

v.SECOND JUDICIAL DISTRICT COURT ET AL.

Supreme Court of New Mexico.

Sept. 9, 1912.

Syllabus by the Court.

Mandamus will not lie where there is an adequate remedy by appeal or writ of error.

Mandamus can only be resorted to when other remedies fail.

Mandamus by the State, on the relation of John A. Sweeney, to the Second Judicial District Court and Herbert F. Raynolds, judge thereof. Rule discharged, and petition dismissed.

The relator made a contract with H. D. Schuyler for the sale of certain real estate; the consideration being the transfer of a certificate of stock, which, it is alleged, Schuyler represented to be of the value of $1,500 and the assumption of a mortgage. Relator avers that the stock was not owned by Schuyler, and that the representations made in regard to the value of the shares were false and fraudulent. Schuyler died, and a claim against his estate, based upon the foregoing facts, was presented to and disallowed by the administratrix, but subsequently allowed by the probate court of Bernalillo county. From this order of allowance an appeal to the district court was taken, where objection was made on the ground of lack of jurisdiction in the probate court to hear and determine a claim of this character. The objection was sustained and the appeal dismissed for want of jurisdiction in the probate court to pass upon the claim and consequent failure of jurisdiction in the district court to entertain the appeal. A motion to reinstate the cause and proceed to a hearing was overruled, and the relator brings this proceeding in mandamus, praying that a writ of mandamus issue out of this court commanding the district court to grant the motion to reinstate the cause, and set aside the order of dismissal and proceed to a trial. An alternative writ of this court and rule to show cause was issued and served upon respondent, and an answer filed thereto.

Mandamus will not lie where there is an adequate remedy by appeal, or writ of error.

Marron & Wood, of Albuquerque, for relator.

Wilson & Lewis, of Albuquerque, for respondent.

HANNA, J. (after stating the facts as above).

The first and only question necessary for our determination is whether this court can review the action of the district court of the Second judicial district in ruling that it had no jurisdiction of the cause, and by a peremptory writ of mandamus compel that court to reinstate the cause and proceed to a trial thereof.

The following legislative enactments upon the subject of mandamus are to be found in the Comp. Laws of 1897, viz.:

“Sec. 2761. It may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust and station; but though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion.

Sec. 2762. The writ shall not issue in any case where there is a plain, speedy and adequate remedy in the ordinary course of law. It shall issue on the information of the party beneficially interested.”

By the terms of section 2771, Comp. Laws of 1897, the Supreme Court is given exclusive original jurisdiction where the writ is to be directed to a district court or a judge thereof in his official capacity. This jurisdiction, however, is necessarily limited by the provisions of the sections first quoted, and this court, therefore, could not control the judicial discretion of the district court, or assert its jurisdiction where there is a plain, speedy, and adequate remedy in the ordinary course of law. It has been said that: “In every court of general jurisdiction there resides authority which is not strictly defined or limited by fixed rules of law, but which must be exercised in order to justly vindicate substantive rights, properly framed issues, and duly conduct trial. This authority may be said, in a general way, to be the power of the judge to rule and decide as his best judgment and sound discretion dictate. The term ‘judicial discretion’ is usually employed as designating the power mentioned.” Alexander v. Smith, 20 Tex. Civ. App. 304, 49 S. W. 916. See Ex parte Johnson, 25 Ark. 614.

[1] While we are of the opinion that the district court was in the exercise of an act of judicial discretion when passing upon the question of its jurisdiction, we...