The Macabees v. Chavez

• Decision Date: 22 August 1939
• Docket Number: No. 4490.,4490.
• Citation: 93 P.2d 990,43 N.M. 329
• Parties: THE MACABEESv.CHAVEZ, Judge of District Court, et al.
• Court: New Mexico Supreme Court

43 N.M. 329

93 P.2d 990

THE MACABEES

v.CHAVEZ, Judge of District Court, et al.

No. 4490.

Supreme Court of New Mexico.

Aug. 22, 1939.

Original certiorari proceeding by The Macabees, a fraternal corporation, to compel David Chavez, Jr., Judge of the District Court, to make certain findings of fact and conclusions of law.

Writ denied.

Under the statute requiring trial court to make its findings of fact and conclusions of law at time of giving judgment, the method of adopting findings and conclusions by reference to requested findings and conclusions submitted by the parties is not to be commended. Comp.St.1929, § 105-813.

Nils T. Kjellstrom, of Gallup, for petitioner.

Denny & Glascock, of Gallup, for respondents.

MABRY, Justice.

This matter is here upon a petition for writ of certiorari. Counsel for parties in the suit below, plaintiff and defendant in cause No. 5574, upon the docket of the district court of McKinley County, were heard in oral argument upon the question of the propriety of the issuance of the writ, and thereafter briefs were filed.

Petitioner, the Macabees, a fraternal corporation, and a defendant below, seeks the writ to compel the judge of the 1st judicial district to make certain findings of fact and conclusions of law that petitioner might thereafter appeal from such judgment upon the merits of the case.

It is conceded that time for appeal has long since expired. It had so expired at the time of the filing of this petition. Respondents contend that petitioner undertaking to prosecute his appeal, failed properly to proceed and that now the right of review by appeal or writ of error being lost to it, seek this writ without excuse or justification.

It appears from the record and the admission of counsel in open court upon the oral argument here, that the trial court, instead of making findings of fact and conclusions of law, of its own, to be incorporated in a separate document and filed in the case, has taken the proposed findings and conclusions of the parties and from these has adopted or rejected those so proposed with appropriate notations, initialed by the trial judge, showing such proposals “refused” or “adopted” as the case might be. These proposals so marked as adopted or rejected were filed in the case as the findings and the conclusions adopted or rejected by the court.

Counsel for respondents says this is a sufficient compliance with section 105-813 of the N. M. Comp. Laws of 1929, requiring the trial court to make its findings of fact and conclusions of law, to be filed in the case, at the time of giving judgment. In any event respondents contend that the remedy for requiring findings of fact and conclusions of law of the trial court is upon appeal or writ of error and not by certiorari.

Respondents contend that the writ of certiorari under the common law practice observed by our courts, and in the absence of statutory enactments modifying, is available only (a) in aid of an appeal or writ of error where such is before the court, or (b) where it is shown that the lower court has exceeded its jurisdiction or has proceeded illegally and there is no provision for appeal or other mode for reviewing its proceedings.

It is not disputed that petitioner did not take its appeal within the time allowed by law. It appears that it did make some move in that direction but it is not seriously disputed that whatever was done looking toward taking an appeal within the time allowed by law was wholly ineffectual. It does not become important to discuss this angle of the case excepting to say that the time for taking an appeal or suing out writ of error had elapsed when petitioner filed here its request for this writ, and that the remedy by appeal would have been adequate if pursued.

Petitioner cites authorities to support its position that a writ of certiorari is not limited to the character of cases to which respondent would confine it and as hereinbefore set out, but says it may be used and is available where the trial court abuses or fails to follow legal procedure, or even where there is a departure from the recognized and established requirements of procedural law. In other words, petitioner contends that the writ may be used in cases of the character just mentioned regardless of the complaining party not having properly moved to have a review by appeal or writ of error.

Petitioner has misconceived the purpose of the writ, and he has likewise relied in the few cases cited, upon authority influenced by legislature modification of the general common law rule, and upon cases where it was held the trial court was wholly without jurisdiction or where the supervisory power of the appellate court was properly invoked to prevent a denial of justice. We have before us no such jurisdictional question and are confronted with no impelling reason for invoking the writ to avoid the miscarriage of justice. Also we have no modifying statutes here and the common law rule prevails in this jurisdiction.

Respondents point out that the question of the appropriateness of this proposed writ suggested itself to the petitioner only when, by his failure within time to take an appeal, all other remedies were lost. The reasons actuating petitioner however do not become important. The question is: does the writ under the circumstances here presented become available?

It is admitted by counsel for petitioner that it is a question of the mechanics of the proceedings in the trial court upon which he relies as being irregular and contrary to this court's holdings upon the question of how the trial court should make its findings of fact and conclusions of law. Under his interpretation of the holdings of this court hereafter referred to, he insists the trial court in fact made no findings of fact...