State v. Mack

• Decision Date: 07 August 1902
• Docket Number: 1,624.
• Citation: 69 P. 862,26 Nev. 430
• Parties: STATE ex rel. BULLION & EXCHANGE BANK v. MACK, Judge (WILLIAMS, Intervener).
• Court: Nevada Supreme Court

69 P. 862

26 Nev. 430

STATE ex rel. BULLION & EXCHANGE BANK v. MACK, Judge (WILLIAMS, Intervener).

No. 1,624.

Supreme Court of Nevada

August 7, 1902

Original mandamus by the state, on the relation of the Bullion & Exchange Bank, against C. E. Mack, district judge. Dora Williams intervenes. Application of relator denied, and that of intervener granted.

Alfred Chartz, for relator. F. M. Huffaker, William Woodburn, and C E. Mack, in pro. per., for respondent.

A. E Cheney, Trenmor Coffin, and J. G. Sweeney, for intervener.

BELKNAP J.

The relator brings mandamus to compel respondent, as district judge, to approve or reject that certain claim of relator for the sum of $19, 360.98 against the estate of Evan Williams deceased, which claim had been duly filed and presented and allowedin part by the executrix of said estate. By his answer the respondent bases his refusal to act upon said claim upon the admitted fact that he is a stockholder of the relator. Dora Williams, at the proper time, asked to intervene, basing her right thereto upon the admitted facts that she was the widow of the deceased, executrix and devisee of his last will and testament, and a creditor of the deceased, having filed her claim against the estate of deceased, upon which claim she had objected to respondent's taking any action for the reasons set up in respondent's answer to relator's petition, and that respondent had failed and refused to call another judge, as required by law, to act upon her said claim. She asked that the peremptory writ issue against respondent compelling him to call another judge. It is averred, and not denied, that the estate of Williams is insolvent. The pleadings present many other facts which we do not deem material. Objection was made to the intervention at theproper time by relator and respondent, but the court made an order allowing the intervention. It has been settled by the decisions of this court (State v. Gracey, 11 Nev. 223; Same v. Curler, 67 P. 1075) that a proceeding in mandamus, under our practice act regulating the same, is a civil remedy, with the qualities and attributes of a civil action. By section 599 (Comp. Laws 1900, § 3694) of the civil practice act, it is provided that any person shall be entitled to intervene in an action who has an interest in the matter in litigation, in the success of either of the parties to the action, or an interest against both. Under the facts and this statutory rule, we are of the opinion that the intervener, as a claimant against the estate, has such an interest in the subject-matter and interest against both as authorized the order of intervention. She is certainly interested as a claimant againstthis insolvent estate in having a qualified judge called to pass upon, not only the relator's claim, but her claim also. The approval of claims by the district judge under the act regulating the settlement of estates (Comp. Laws 1900, § 2896) gives them the rank of acknowledged debts against the estate, and authorizes their payment in the course of administration; and while it is true that objections may be made on final accounting, yet the declared policy of the law is the speedy and inexpensive settlement of estates. It follows, therefore that the validity or invalidity of claims against estates should be determined before payment, and not be held in abeyance until final account by the action of a disqualified judge. The answer of respondent to relator's petition shows, as we believe, such an interest, under the facts, as would disqualify him to act upon relator's or intervener's claim under the rule of the common law or the rule of our civil practice act, if such rule should prevail in probate proceedings. It is the rule of the common law that a judge shall not hear and determine actions in which he is interested (Cooley, Const. Lim. p. 506; State v. Crane, 36 N. J. Law, 394; Bank v. McGuire [S. D.] 80 N.W. 1074, 47 L. R. A. 413, 76 Am. St. Rep. 598), and it is the express declaration of our stat...