State v. Mack , 26 Nev. 430 ( 1902 )

The facts sufficiently appear in the opinion. 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 allowed in 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 repondent'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 the proper 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;State v. Curler, 26 Nev. 347) 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, sec. 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 against this 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, sec. 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 a 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), and it is the express declaration of our statute (Comp. Laws, 1900, sec. 2545) that a judge shall not act in an action or proceeding in which he is interested.

Under this statutory rule this court has held that the action of a disqualified judge is absolutely void. (Frevert v. Swift, 19 Nev. 364;State v. Noyes, 25 Nev. 49.)

Jurisdiction of probate matters is vested by our constitution in the district courts, and, if there were no other provision of law than the section of the civil practice act, supra, we would be disposed to hold that its language was sufficiently broad to apply to "proceedings" in probate; but we are not left in doubt as to what the rule should be, as the legislature, in the act regulating the settlement of estates of deceased persons (Comp. Laws 1900, secs. 2869, 2870), has declared in substance and in effect the same rule prevailing under the civil practice act in civil actions.

By Section 2869, supra, it is provided that no district judge shall admit any will to probate, or grant letters testamentary or of administration in any case where he shall be interested as next of kin to the deceased, or as a legatee or devisee under the will, or when he shall be named as executor or trustee in the will, or shall be a witness thereto.

By Section 2870, supra, it is declared: "When any district judge who would otherwise be authorized to act, shall be precluded from acting from the causes mentioned in the preceding section, or when he shall in any manner be interested, he shall call a district judge of another district to hold the court of his county; and such judge shall hold such court and be vested with all the powers of the court and judge so disqualified, and shall retain jurisdiction as to all subsequent proceedings in regard to the estate."

This language is too plain to require construction. If the legislature did not intend that the interest of the judge, other than the interest specified in Section 2869, should disqualify him from acting, it would never have inserted in the section, "or when he shall in any manner be interested." If this language does not mean what it imports, it was useless and was meaningless.

The facts shown by respondent's answer to relator's petition and in the petition for intervention, not disputed, establish the respondent's disqualification, and under those facts nothing remained to be done except to call another judge, which the statute authorized and directed in mandatory terms.

No formal application for the calling of a qualified judge was necessary when the record disclosed that respondent was disqualified, as admitted here. (Krumdick v. Crump, 98 Cal. 117;Heilbron v. Campbell, (Cal.) 23 Pac. 122;Gunn v. Lauder, (N. D.) 87 N. W. 999.)

It is not necessary either to consider or discuss what the effect of the respondent's disqualification may or may not have been upon the proceedings in probate before such disqualification was disclosed, as no such question is presented by this record.

The peremptory writ upon the application of the relator will be denied, and granted upon the application of the intervener.

FITZGERALD, J., concurs in the order.

MASSEY, C. J., did not participate in the above decision.