The Territory of N.M. On the Relation of Gertrude E. Huntington v. Valdez

• Decision Date: 31 January 1872
• Citation: 1 N.M. 533
• Parties: THE TERRITORY OF NEW MEXICO ON THE RELATION OF GERTRUDE E. HUNTINGTON AND D. L. HUNTINGTONv.SANTIAGO VALDEZ, PROBATE JUDGE, AND VICENTE ROMERO.
• Court: New Mexico Supreme Court

1 N.M. 533

THE TERRITORY OF NEW MEXICO ON THE RELATION OF GERTRUDE E. HUNTINGTON AND D. L. HUNTINGTON

v.SANTIAGO VALDEZ, PROBATE JUDGE, AND VICENTE ROMERO.

Supreme Court of the Territory of New Mexico.

Jan. 1872.

Where undisputed proof showed the removal without notice of administratrix by probate court on petition of judgment debtors and appointment of another judgment debtor pending appeal to Supreme Court of the United States from a judgment for a large sum against such judgment debtors in favor of administratrix, the district court on certiorari properly set aside such orders and restrained the probate court from entertaining any proceeding to remove or suspend the administratrix during the pendency of case on appeal to the Supreme Court or until the further order of the district court. Revised Statutes, p. 34, c. 2, §§ 5, 6.

*1 APPEAL from the district court for Mora county. The opinion states the case.

S. B. Elkins, Wheaton, Clever and Watts, for the defendants and appellants.T. F. Conway, attorney-general, for the plaintiffs and appellees. By Court, JOHNSON, J.:

In the month of March, 1871, the relators petitioned the district court in and for the county of Mora, showing that one of them, then Gertrude E. Webb, was on the twenty-seventh day of July, 1868, appointed by the probate court of said county, administratrix of the estate of Nathan Webb, her husband, then lately deceased; that in January, 1869, she commenced suit as administratrix against William H. Moore and William C. Mitchell, surviving partners of said deceased, for settlement of the interest of said estate in the firms of W. H. Moore & Co. and N. Webb & Co.; that, being unable to make an inventory of said estate, for the reason that all of its assets were in the hands of said surviving partners, she could form no correct estimate of the extent and value of the said assets. On the twenty-seventh of October, 1869, she made report accordingly to the probate court of Mora county (Vicente Romero, one of the respondents to this petition, then being judge of said court), and obtained an order of said court granting her further time until the termination of said suit to make report and said inventory; that at August term, 1870, of the district court for said county, a decree was rendered in said suit against said Moore and Mitchell in favor of said administratrix and her present husband, from which decree said Moore and Mitchell appealed to this court, said Romero, one of the respondents in this suit, becoming one of the securities on their appeal bond; that this court at January term, 1871, affirmed said decree to the amount of seventy-four thousand and eight hundred dollars, against the appellees and the securities on their said bond, including said Romero; that from said decree of this court said appellees appealed to the supreme court of the United States, where said suit is still pending; that on January 3, 1871, the probate court of said county removed said administratrix from her administration, and appointed said Romero in her stead, notwithstanding the order of said court before mentioned, and the fact that Romero was a judgment debtor of said estate, and without any notice whatever to said administratrix of the pendency in said court of proceedings for her removal from administration. Upon this exhibition of facts, the petitioners pray the court below for a writ of certiorari to the said probate court, etc. On the eleventh and thirteenth of March, 1871, the respondents were served with notice of the pendency of the petition, and that on the twentieth of the said month, the district court in and for said county would be moved to grant said writ.

On the twenty-first of said month, after argument of said motion, a writ of certiorari was granted. In obedience to the writ the probate court of Mora county, sent to the court below a transcript of its proceedings, by which it appears that on the third of January, 1871, Gertrude E. Webb, now Huntington, was removed from the administration of the estate of Nathan Webb, deceased, by order of said probate court, on the petition of William H. Moore and William C. Mitchell; that the next day said Moore was, on his own application, appointed administrator de bonis non of said estate, and that he resigned his administratorship on the ninth of the same month, when the said court appointed Vicente Romero administrator in his stead. It does not appear from this transcript, that said Gertrude, or any person representing her, was present in said court during any portion of these proceedings, or that she, her agent or attorney, had been notified that such proceedings were pending.

*2 Vicente Romero filed in the court below, on the return of the writ, an affidavit stating, among other matters, that he was probate judge of Mora county in 1869, until the beginning of October, and denying that he, or the said probate court, while he was judge of it, had made the order alleged in the relators' petitions, dispensing with the report of the administratrix and the making of an inventory, until the termination of her suit against Moore and Mitchell, but it appears from another transcript from the probate court, filed in this cause in the court below, that such order was made by said probate court on the third of November, 1869, Jose Ledenux being then probate judge of said county.

The court below adjudged the proceedings of the probate court of Mora county, in removing said administratrix from her trust and appointing said Vicente Romero administrator in her place, to be without warrant of law, and fraudulent and void from the beginning, and enjoined said probate court from entertaining any proceedings to remove or suspend the said Gertrude E. Huntington from her trust as administratrix of Nathan Webb, deceased, during the pendency of, and until the final determination of the suit in the supreme court of the United States, in which she and her husband are complainants against said Moore and Mitchell, or until the further order of the court below. From the judgment of the court below the respondents appeal.

The points presented by the appellant's assignment of errors involve: 1. The power of the court below to issue the writ of certiorari; 2. Whether it erred in granting the writ in this cause; 3. Whether the judgment of the court below was erroneous.

The...