State ex rel. Walker v. Hinkle

• Decision Date: 04 April 1933
• Docket Number: No. 3782.,3782.
• Citation: 37 N.M. 444,24 P.2d 286
• Parties: STATE ex rel. WALKERv.HINKLE, Commissioner of Public Lands.
• Court: New Mexico Supreme Court

37 N.M. 444

24 P.2d 286

STATE ex rel. WALKER

v.HINKLE, Commissioner of Public Lands.

No. 3782.

Supreme Court of New Mexico.

April 4, 1933.

Appeal from District Court, Santa Fé County; Otero, Judge.

Proceeding by the State of New Mexico, on the relation of B. B. Walker, for a writ of mandamus to James F. Hinkle, Commissioner of Public Lands of the State of New Mexico. From a judgment awarding a peremptory writ, respondent appeals.

Affirmed, and cause remanded.

Broad official discretion of state land commissioner cannot be controlled by mandamus.

John I. Hinkle, of Santa Fé, and Hockenhull & Mayes, of Clovis, for appellant.

McIntosh & Chavez, of Santa Fé, for appellee.

WATSON, Chief Justice.

This is an appeal from a judgment awarding a peremptory mandamus against the commissioner of public lands.

The relator (appellee) was the losing party in a contest in the state land office. He prayed an appeal to the district court, and tendered a bond. Appellant, the commissioner, disapproved the bond and denied the appeal. Thereupon the alternative writ was sued out. The judgment awarded a peremptory writ, “commanding *** said respondent *** to forthwith fix the amount of an appeal bond *** at a reasonable figure *** and after so fixing said bond and the furnishing thereof *** to grant relator an appeal *** or in the alternative to approve the bond heretofore filed *** by relator *** and to grant relator an appeal.”

We first notice certain procedural questions. Appellant contends: (1) That the alternative writ does not, without aid from the petition, contain allegations or recitals of fact sufficient to constitute a cause of action; (2) that the command of the alternative writ that respondent “take appropriate action in the premises referred to in said petition,” or show cause, is insufficient for uncertainty; (3) that the peremptory writ is a variance from the alternative writ; (4) that the peremptory writ was issued after appeal granted to this court, and is void for want of jurisdiction; (5) that, since no evidence was taken at the final hearing, the court's findings of fact are without support.

As to these matters it is to be borne in mind that the cause is here on appeal, not as an original proceeding. The place to have polished the pleadings and to have insisted on strict regularity of proceedings was in the court below. We must take them as we find them, except as we may find something jurisdictionally or fundamentally wrong, or some erroneous action of the trial court to which his attention was properly called. State ex rel. Thompson v. Beall, 37 N. M. 72, 18 P.(2d) 249.

Although appellant interposed a “demurrer and motion to dismiss” independent of his “answer and return,” objections one and two were not made. Indeed, appellant pleaded to the alternative writ as if the allegations of the petition were a part of it, and as if the prayer of the petition were the command of the writ. This is more than a failure to preserve the questions for review. It is a waiver. State ex rel. Burg v. City of Albuquerque, 31 N. M. 576, 249 P. 242. Counsel question the soundness of that decision as to waiver, but we see no reason to depart from it.

Appellant contends that these legal objections were raised by the final paragraph of his “answer and return,” reading thus: “Further answering said amended Writ, the respondent alleges that there are many matters set forth therein that are insufficient to constitute grounds for mandamus and that matters of evidence are pleaded therein and that the same does not state a cause of action against this respondent and that proper grounds are not set forth, upon which the Court can base a decision sustaining said Writ.”

We do not deem this sufficient to invoke any ruling. Comp. St. 1929, § 105-412. Williams v. Kemp, 33 N. M. 593, 273 P. 12.

If, as appellant contends here, the peremptory writ was issued after appeal taken, it would seem to be fatal to any claim of error based upon that writ. The appeal is from the judgment. It cannot be impeached for what subsequently occurred. Before resorting here appellant should have attacked the peremptory writ in some manner below. The record does not show even an exception to it. It may be entirely void without affecting the judgment.

[6] There were no specific objections to the court's findings; there being only the general exception to the judgment, which embraced the findings: “To all of which the respondent objects and excepts and exceptions are hereby allowed.” The judgment opens with the recitals that the parties appeared by their respectively named counsel, and that it appearing “from statements and admissions of counsel that the facts herein are as alleged in relator's petition *** and that the only issue of fact is as to whether or not the sureties upon the $2,000.00 bond tendered by the relator are in fact sufficient and financially responsible for the amount of said bond. ***”

We know of no reason why the trial court could not base findings upon admissions of counsel. In the absence of some form of objection at the time, the findings must stand as the facts in the case.

As to the one issue of fact, the responsibility of the sureties, the trial court concluded that it was immaterial, since the disapproval of the bond was not placed on that ground. It would now seem to be immaterial for another reason: The judgment does not require the approval of that particular bond.

This brings us to the merits of the case. Appellant urges that the judgment is an unwarranted attempt to control his official discretion. This requires some consideration of the facts.

The decision of appellant on the contest, rendered October 20, 1931, canceled appellee's leases of some 13,000 acres of state lands. In November following, appellee's attorneys were informed, on inquiry of appel...