TALBOT v. TAYLOR, 5014

• Decision Date: 23 April 1947
• Docket Number: No. 5014,5014
• Citation: 181 P.2d 159,51 N.M. 160
• Parties: TALBOT v. TAYLOR, District Judge.
• Court: New Mexico Supreme Court

51 N.M. 160

181 P.2d 159

TALBOT

v.TAYLOR, District Judge.

No. 5014.

Supreme Court of New Mexico.

April 23, 1947.

[181 P.2d 159, 51 N.M. 161]

Adolph J. Krehbiel, of Clayton, for petitioner.

H. E. Blattman, of Las Vegas, D. A. Paddock, of Clayton, and Noble & Spiess, of Las Vegas, for respondent.

McGHEE, Justice.

This is an original action instituted by C. P. Talbot, as executor pendente lite of the last will and testament of Leck Burk, deceased, seeking a writ of prohibition against the Honorable Livingston N. Taylor, Judge of the Eighth Judicial District, to prevent the enforcement of an order appointing coadministrators and any acts on his part in general probate proceedings removed to the district court of Union County.

Probate of the will of Leck Burk, deceased, executed on June 16, 1944, was refused by order of Union County Probate Court. By the same order, C. P. Talbot was appointed executor pendente lite as required by Section 32-211 of the N.M.1941 Comp., and said purported last will and testament of decedent, together with all testimony taken, and a transcript of the proceedings was by the probate court transmitted to the clerk of the District Court of Union County for hearing de novo pursuantto Section 32-210 of the N.M.1941 Comp. This case was docketed as cause No. 10,191 by the clerk of the court and a trial was had thereon; on October 5, 1946, respondent stated in open court that he would refuse probate of said will, but did not enter judgment refusing probate of the will until December 16, 1946.

In the general probate proceedings on October 15, 1946, upon a petition theretofore filed on behalf of Bertha McGuire, objector, respondent ordered the removal of the general administration proceedings for probate of the estate in accordance with Section 16-420 of the N.M.1941 Comp. This case was docketed as cause No. 10,200in the Union County District Court. Nothing was ever submitted to respondent by petitioner in Cause No. 10,200 for determination.

On November 8, 1946, the attorneys for the proponent and objector presented their requested findings of fact and conclusions of law in Cause No. 10,191 to the respondent, who announced he would reject all of them and would himself prepare and file findings and conclusions.

Immediately prior to the hearing in Cause No. 10,191, an affidavit of disqualification had been filed against Judge Taylor in the general probate Cause, No. 10,200, and the attorneys for the objector (sister of deceased) had been served with a copy thereof. The attorneys for the proponent did not advise Judge Taylor of its filing, but the statement is made in the brief and not denied that one of the attorneys for the objector told Judge Taylor of its filing before the application for the appointment of temporary administrators was presented and the order made thereon.

As soon as Judge Taylor stated that he would later prepare and file his findings and conclusions, the attorneys for the objector presented a motion in Cause No. 10,191 asking for the appointment of temporary administrators, and respondent, over the objection of petitioner, immediately sustained the motion and directed the petitioner to deliver the assets of the estate to them, the practical effect of which was the removal of petitioner as executor pendente lite. No service of the motion had been made on the petitioner or notice given his attorneys that such a request would be made.

The first question for determination is the power and jurisdiction of a district judge when a will is certified to the district court under the provisions of Sec. 32-210, N.M.Statutes 1941, reading as follows: '32-210. Finding as to validity of...