Decision Date24 July 1947
Docket NumberNo. 4970,4970
Citation183 P.2d 607,51 N.M. 297
CourtNew Mexico Supreme Court

[183 P.2d 608, 51 N.M. 298]

Reese & Reese, of Roswell, and Rodey, Dickason & Sloan, of Albuquerque, for petitioner.

W. A. Keleher and Theo. E. Jones, both of Albuquerque, for respondents.

McGHEE, Justice.

This is an original action seeking to prohibit a retrial of Burguete v. Del Curto, which involves the ownership of a state grazing lease, in which we reversed the judgment of the district court because the state was not a party to the suit. Burguete v. Del Curto, 49 N.M. 292, 163 P.2d 257.

A mandate was issued directing the district court to vacate its judgment and dismissBurguete's cause of action, but a majority granted a motion to recall the original mandate and ordered the issuance of a new one in which the direction to dismiss was omitted. The Commissioner of Public Lands then entered a limited appearance as a defendant in the lower court. For the purpose of this case only we will treat it as a general appearance on his part.

We held in State ex rel. Evans v. Field, 27 N.M. 384, 201 P. 1059, and in State ex rel. Otto v. Field, 31 N.M. 120, 241 P. 1027, that an action against the Commissioner of Public Lands, except to compel the performance by him of a ministerial duty, is an action against the state, which may not be maintained without its consent.

The only authority which may give this consent is the legislature. We hold that the attempt of the Commissioner of Public Lands to make the state a party defendant was a nullity, and that, therefore, it is still not a party to the suit.

We must hold, therefore, that the order modifying the mandate in Burguete v. Del Curto, supra, was improvidently made; that the district court is without jurisdiction to do anything in the case except to dismiss it as directed by the majority opinion in Burguete v. Del Curto, supra.

The alternative writ of prohibition heretofore issued will, therefore, be made absolute, and it is so ordered.

BRICE, C. J., and LUJAN and COMPTON, JJ., concur.

SADLER, Justice (dissenting).

I dissent.

The prevailing opinion is not quite accurate in stating that the majority in the opinion on former appearance before us of this litigation 'granted a motion to recall the original mandate and ordered the issuance of a new one in which the direction to dismiss was omitted.' The majority in that case accomplished more than that. Indeed, they made no specific direction as to issuance of a new mandate at all. They simply deleted from the opinion on file the direction for a dismissal upon remand and substituted for such language, the following:

'The judgment is reversed and the cause remanded with direction to the trial court to set aside its judgment and for further proceedings consistent with and conformable to the views herein expressed.'

The foregoing is said to demonstrate that the order entered on motion to recall mandate, in effect, was an opinion on rehearing since it removed from the opinion filed one direction to the district court on how to proceed following remand and substituted therefor another direction. Necessarily, the change was for the purpose of giving the plaintiff an opportunity tosatisfy the trial court that the Commissioner could properly be made a party defendant, either with or without his consent.

This was a decision the majority in the former opinion expressly declined to make since the matter was not before this court for review, never having been ruled upon by the trial court. The latter court, the only court having original jurisdiction to decide the question took the view that neither the state nor the Commissioner was a necessary party to the suit.

That the matter was never passed upon by the court in the former opinion is abundantly demonstrated by excerpts from the opinion. At one point, we said [49 N.M. 292, 163 P.2d 258]:

'The jurisdiction of the Commissioner not ever having been invoked by any of the transaction, as between any of the parties, touching upon the use of the lands by one not a party to the lease, and himself a stranger to the Commissioner, and this proceeding not arising out of a contest action before the Commissioner, and the Commissioner not being made a party hereto, can this suit be maintained?'

Again, at another point, the opinion reads:

'* * * Certainly, in any event, the jurisdiction of a court of equity may not be invoked absent this necessary and indispensable party, the Commissioner.

'The Commissioner is not a party to this litigation.'

Further on, the opinion proceeds:

'And, whether the Commissioner could be made a party to such suit without his consent, we, likewise, need not, and do not decide. We know that in State ex rel. McElroy v. Vesely, 40 N.M. 19, 52 P.2d 1090, mandamus was employed without question of its appropriateness if it could be said that a clear legal duty rested upon the Commissioner to respect a clear legal right. See also American Trust & Savings Bank of Albuquerque v. Scobee, supra [29 N.M. 436, 224 P. 788], in this connection.'

In the former opinion, it was clearly held that the Commissioner was an indispensable party. As already pointed out, we expressly declined to offer a gratuitous opinion on whether he could be made a party, no effort having been made to join him as such and any declaration on the subject operating to review no ruling of the trial court. Accordingly, in a motion to recall the mandate, the plaintiff informed this court of the Commissioner's willingness to enter a voluntary appearance in the case and asked such an amendment of the mandate as would give the lower court power to act upon the application for leave to appear. We so amended the language of our opinion on file as to permit this. And, now, the defendants in that case, but asthe relators here, seek by prohibition to deny the district court the exercise of jurisdiction, obviously possessed by it, to determine in the course of trial whether the appearance before it of a state official as a party litigant amounts to an unwarranted appearance by the state. The present majority sustain them in this claim.

If the defendants be correct in this contention, then when this court entertained appeals in State ex rel. Evans v. Field, 27 N.M. 384, 201 P. 1059; American Trust & Savings Bank of Albuquerque v. Scobee, 29 N.M. 436, 224 P. 788; State ex rel. Otto v. Field, 31 N.M. 120, 241 P. 1027; Looney v. Stryker, 31 N.M. 557, 249 P. 112, 50 A.L.R. 1404; Arnold v. State, 48 N.M. 596, 154 P.2d 257, and others unnecessary to cite, where the state's immunity to suit was involved, we were reviewing judgments and decrees that were complete nullities and might have been ignored as such in the absence of direct review.

In this very case, where presence of the state as an indispensable party was urged by motion as a ground for dismissal and the motion denied, could it be successfully maintained that, absent a direct review, the judgment entered would be a nullity as between the plaintiff and defendant, granting the same would not be binding on the state? Cf. Mann v. Whitely, 36 N.M. 1, 6 P.2d 468. If not, then the district court had jurisdiction to render it even though it determined erroneously, as in our former opinion we held it did, its power to proceed. State ex rel. St. Louis Rocky Mountain & Pacific Co. v. District Court, 38 N.M. 451, 34 P.2d 1098.

In the group of cases cited, supra, involving the state's immunity from suit, it so happens that in each of them the claim to immunity was sustained. But the claim is not always well taken. Board of Trustees of Town of Casa Colorado Land Grant v. Pooler, 32 N.M. 460, 259 P. 629; Gamble v. Velarde, 36 N.M. 262, 13 P.2d 559. See, also, the historic case of United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171. As indicated in the Pooler case, supra, the matter is one rarely easy to decide.

In that case, this court said [32 N.M. 460, 259 P. 630]:

'Whether a suit nominally against individuals is really against the state is not always easy to decide. The question has given the courts much trouble, and in some situations its consideration has disclosed contrariety of opinion. See case notes, 108 Am.St.Rep. 830 and 44 L.R.A.(N.S.) 189.'

In both the cases of Board of Trustees v. Pooler and Gamble v. Velarde, cited supra, the claim, although interposed, was not sustained. Are we to understand that our district courts have jurisdiction to resolve the issue when they determine it correctly but not when they decide it erroneously?In answer to a similar contention in State ex rel. St. Louis, Rocky Mountain & Pacific Co. v. District Court, supra, we said [38 N.M. 451, 34 P.2d 1099]:

'It is argued that 'subject matter,' as the term is used in the Gilmore Case [(Gilmore v. District Court), 35 N.M. 157, 291 P. 295], means not jurisdiction of workmen's compensation litigation, but, to be specific, jurisdiction of claims filed within the statutory time. That is to say, the statute confers jurisdiction upon the district courts to award compensation to those entitled to it, not to those not entitled; to render some judgments, not others.

'We consider the law settled to the contrary in this state. Here the test of jurisdiction is not the right or authority to render a particular judgment; it is the right or authority to render any judgment.'

In the Heron case, 46 N.M. 296, 128 P.2d 454, at page 458, after referring to the foregoing exposition on prohibition in the St. Louis, Rocky Mountain & Pacific Co. case, supra, we applied a test which still obtains. Mares v. Kool, 51 N.M. 36, 177 P.2d 532. We said:

'We think it fair to say of our decisions on the question when to prohibit, in line with what has just been quoted from State ex rel. St. Louis, Rocky Mountain & Pacific Co. v. District Court of Eighth Judicial District, supra, that if, absent prohibition in the given case, the judgment therein...

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