State Ex Rel. Weltmer v. Taylor

• Decision Date: 23 May 1938
• Docket Number: No. 4374.,4374.
• Citation: 42 N.M. 405,79 P.2d 937
• Parties: STATE ex rel. WELTMERv.TAYLOR, JUDGE.
• Court: New Mexico Supreme Court

42 N.M. 405

79 P.2d 937

STATE ex rel. WELTMER

v.TAYLOR, JUDGE.

No. 4374.

Supreme Court of New Mexico.

May 23, 1938.

Original proceeding by the State, on the relation of Stella Ruth Baldwin Weltmer, formerly Stella Ruth Baldwin, to restrain and prohibit Livingston N. Taylor, District Judge of the Eighth Judicial District of the State of New Mexico, from proceeding further with a cause pending in the District Court of Colfax County.

Proceeding dismissed.

Condemnation proceedings initiated by filing a petition for appointment of commissioners continued through the appellate proceedings in the district court and did not terminate with the confirmation of the commissioner's report by the district court, so as to permit a litigant to file an affidavit of prejudice against the presiding judge after litigant had waived his statutory right to disqualify the judge by submission of exception to the commissioners' report for a ruling thereon by such judge, since proceedings on appeal were a continuation and part of the original proceedings. Comp.St.1929, §§ 43-102, 43-103, 43-106, 43-108; Laws 1933, c. 184; Const. art. 6, § 13.

H. M. Rodrick, of Raton, for relator.

Verdan A. Doggett and John B. Tittmann, both of Raton, and H. A. Kiker, Manuel A. Sanchez, and Anthony J. Albert, all of Santa Fe, for respondent.

BRICE, Justice.

This is an original proceeding brought to restrain and prohibit the Honorable Livingston N. Taylor, Judge of the Eighth Judicial District from proceeding further with a cause pending in the District Court of Colfax County, upon the alleged ground that he was disqualified to try it. The facts are:

On May 26, 1937, the Board of County Commissioners of the County of Colfax filed a petition in the District Court of that county to condemn certain lands of the relator and others, for public road purposes, the proceeding being numbered 9795. The respondent, as district judge, entered an order appointing three commissioners to assess the value of the land sought to be condemned, as provided by section 43-102, N. M.Sts. 1929. The commissioners filed their report, assessing damages, to which the relator filed his exceptions. A hearing was had before respondent, the exceptions overruled, and the report confirmed.

An appeal was taken from the order of confirmation to the district court, as provided by section 43-108, N.M.Sts.1929, and notice duly given to the Clerk of the district court.

Before any further proceeding could be had, relator filed an affidavit of prejudice under chapter 184, Laws 1933. The respondent held, upon a hearing, that he was not disqualified to preside in the case, and thereupon this proceeding was instituted.

The affidavit to disqualify Judge Taylor was filed under authority of chapter 184, N.M.Laws 1933, which is:

“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 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 cause.”

[1] We held in State ex rel. Hannah et al. v. Armijo, Judge, 38 N.M. 73, 28 P.2d 511, that when the affidavit provided for in the statute just quoted was timely made, that the disqualification of the presiding judge was accomplished. The only question here is whether the affidavit which was filed after the proceedings had continued from the appointment of the commissioners until their report had been filed and confirmed and an appeal taken, was “timely made.”

[2][3] This act has been construed a number of times. The affidavit to disqualify a district judge must be filed before a party has called upon the court to act judicially upon any material issue, and before he has participated in any proceeding upon any such issue presented by the adverse party. For instance, if a party participated in a hearing on demurrer, whether his own or that of his adversary, he will be held to have waived the privilege under the statute, upon the theory that he should not be permitted to test the presiding judge's attitude upon material issues and if not to his liking, disqualify him. The right to disqualify the presiding judge is based upon an assumed prejudice or bias on his part, and not upon his views regarding the law of the case. State ex rel. Gandert et al. v. Armijo, 41 N.M. 38, 63 P.2d 1037; State ex rel. Romero v. Armijo, 41 N.M. 40, 63 P.2d 1039; State ex rel. Cruz v. Armijo, 41 N.M. 44, 63 P.2d 1041; State ex rel. Tittmann v. Hay, Judge, 40 N.M. 370, 60 P.2d 353; State ex rel. Shufeldt v. Armijo, 39 N.M. 502, 50 P.2d 852.

Condemnation proceedings under the New Mexico statutes are instituted by the filing of a petition in the district court, setting forth certain facts, among which is the description of the real estate to be condemned, the name of the owner, if known, etc., and praying for the appointment of three disinterested freeholders as commissioners to assess the damages which the owner may sustain. Notice of such petition must be served on the owner of the land at least five days prior to the time it is to be presented to the district court for an order appointing commissioners. Thereupon, the district court, on being satisfied that due notice of the pendency of the petition has been given, shall appoint three disinterested commissoners, who shall be freeholders, residents of the county in which the real estate, or a part thereof is situated, to assess the damages which the owner may sustain by reason of the appropriation of his land. When the commissioners have viewed the property they are required to make a return under oath, assessing the amount of the damages, “*** and the clerk shall file and record the said report; and thereupon such company shall pay to the said clerk the amount thus assessed, for the party in whose favor such damages have been assessed; and on making such payment it shall be lawful for such company to hold the interest in the property so appropriated for the uses aforesaid; and upon the failure to pay the assessment aforesaid, the court may, upon motion and notice by the party entitled to such damages enforce the payment of the same by execution.” Section 43-103, N.M. Sts.1929.

Section 43-106, N.M.Sts.1929, is: “Upon the filing of such report of said commissioners, the clerk of the court wherein the same is filed shall forthwith notify the attorneys of record for all of the parties to such proceeding who have entered appearances therein, or if not represented by attorney, all parties in appearance at their respective post office addresses of record. *** The report of such commissioners may be reviewed by the court in which the proceedings are had on written exceptions filed in the clerk's office, by either or any party within thirty days after the time of the filing of such report in the clerk's office; and the court shall make such order therein as right and justice may require, and may order a new appraisement upon good cause shown to be made, either by the commissioners already appointed or by three other qualified commissioners to be appointed for that purpose. ***”

Section 43-108, N.M.Sts. 1929, is: “Within twenty days after the final confirmation of any report of such commissioners, as provided for in section 2103 (43-106), any person interested therein may appeal from the said order and confirmation to the district court of the proper county, by filing a notice with the clerk of said court that an appeal has been so taken, and thereupon the clerk shall docket said cause in the district court and it shall stand for trial in said court as other civil causes are tried and shall be tried de novo, and the parties, unless they shall waive the same, shall be entitled to a trial by jury as in ordinary cases.”

[4] The submission of exceptions to the commissioners' report for a ruling thereon by Judge Taylor, waived relator's statutory right to disqualify him in that case, and relator does not claim otherwise; but she contends that the case on appeal is a new case, and...