Brief for the Respondent in Opposition — Chambers v. Beauchamp

SUPREME COURT, U. & ae af

"SEP 29 1969

7 JO F a,c

—~ Sept Ct he Has Sh

Ocrosm Tsu, 1969 , ee

No. 554°

Joun T. CHAMBERS,

ON PETITION FOR WRIT OF CERTIORARI TO THE ies <a

SUPREME COURT OF NEW MEXICO :

"BRIEF FOR RESPONDENTS IN OPPOSITION.

iniesets, Henna

Post Office Drawer 1567.

" Loyington, New Mexico 88260

Post Office Box 1298

.,Lovington, New Mexico 88260

ll

D> scmrram: saoruces ramrine co., mc, sanva re, W. u. 5 , s

INDEX

| Page

_ OPINION BELOW ........... 1

- JURISDICTION : dicuulens 2

- QUESTION PRESENTED. | .............--.--2ccqeeceocteoniovensinnnncoqneenen vessndionee 2

. StaTUTES INVOLVED palialicneae 2

SATEMENT oo ooca a eeceecceesceesceeceeetteee ” piveaklali. a

ARGUMENT ......... nea ‘itesledabtaiies i.

I. Certiorari will not issue wa review a decision of a~

state court of last resort on constitutional issues

presented for the first time on Motion for. Re-

IE scichcihssvesscsncncsinctinubalanjicnianamntiticieniie 9

II. Appropriate procedures were available to petition-

er to disqualify the trial judge, and :petitioner’s

failure to properly and timely use same, cannot be

considered a denial of due process 10

III. The refusal of the. New Mexico District Court to

recognize Peck’s ‘purported: Will and the pending

proceedings in the State of Texas didnot violate

the full faith and credii clause 13

IV. The decision below as to. Peck’s domicile and men-

tal capacity is based on a proper application of ©

precedents and is clearly correct... 15

ConcLusion Pace pieons 17 .

CITATIONS

CASES: |

American —s Company v. Baldwin

287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231,

86 A.L.R. 298 (1932) ' ; 9

Barney v. Huff 2s

306 S.W.2d 617 (1959) ......: : 14

Barrow v. Mutual Life Ins. Co. of New York

- 147 P.2d nek 48 NeM. 206 (1944). 15

Belk v. Collea

61 S.E.2d 464, 207 Ga. 328 (1950). .15

_ Bogel v. White .;

: 168 S.W.2d 309 (1942) ‘ 15.

Burbank v. Ernst | acess "

232 U.S. 162,.34 S.Ct. 299 (1914) - - 14

Chapman v. John St. John Drilling Company

387 P.2d 454, 457, 73 N.M.«261 (1963) m 13

Commonwealth v. Kernochan 7 .

106 S.E, 367, 129 Va. 405 (1921) : 15

°

OFT ENTE PINNED

ii. INDEX Continued

Couyoumjian v.

yoy

103 N.W.2d 587, 594, 360 Mich. 371 (1960)

Davis v. Davis .

25 S.E.2d 181, 183; 223 N.C. 36 (1943)

Gutierrez v. Middle Rio Grande Conserva

282 P. 1, 34 N.M. 346, 70 A.L.R. 1261 (19

Hardgrove v. De Tra

34 S.W.2d 379 (1931), affirmed, De Tray v.

Hardgrove, 52 S.W.2d 239 (1932)

Holland v. Jackson

37 S.W.2d 726 (1931)

In re Collins’ Estate

165 A. 285, 286, 11 N.J.Misc. 233 (1932)

In re Fox West Coast Theatres

25 F.Supp. 250, Affirmed, C.C.A., 88 F.2d 212, cert.

den. (1937) Tally v. Fox Film Corporation, 57 S.Ct.

944, 301 U.S, 710, 81 L.Ed. 1363, Rehearing den., 58

S.Ct. 4, 302 US. 772, 82 L.Ed. 598 (1937)

In re Peter’s Estate ©

264 P.2d 1117 (1953)

Midwest Royalties v. Simmons

301 P.2d 334, 61 N.M. 399 (1956)...

Rivera v. Hutchings

284 P.2d 222, 59 N.M. 337 (1955) °.......2.......000-..-

Stanley v. Campbell

27 $0.2 411, 157 Fla. 891 (1946)........

State v. Garcia

142 P.2d 552, 47 N.M. 319 (1943) .......

" State v. Superior Court of Thurston County

255 P. 376, 143 Wash. 358 (1927)........

State ex rel. Lebeck v: Chavez

113 P.2d 179, 45 N.M. 161 °(1941) -......

Sullivan v. Kenney

126 N.W. 349, 358, 148 Iowa 361 (1910)

United States v. H ethington

279 F.2d 792, cert. den., 81 S.Ct. 271,

364 U.S, 908, 5 L.Ed.2d 224 (1960)

CONSTITUTIONAL PROVISIONS AND STATUTES:

Title 43, U.S.C.A., §172.:....

United States Constitution

Article IV, Section 1...............

Vernon’s Texas Rules of Civil Procedure

Vol. 3, Rule 335

_ MISCELLANEOUS:

Page on Wills, 1941 Ed., Vol..2, $726, P. .. 397

IN THE

Supreme Court of the United States

OcToBEeR TERM, 1969

No. 554 °

-_--—————_

*. Joun T. CHAMBERS,

Petitioner

Vv.

W. M. BeaucHamp, ADMINISTRATOR OF THE ESTATE OF

D. P. Peck, Deceasep, AND CARL ANDREW CHAMBERS,

Respondents I

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW MEXICO

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINION BELOW

The opinion of the Supreme Court of New Mexico (Ap-

pendix B, Page B-1 of the Petition) is reported at 454 P.2d 772

and Se in Volume 80 N. M. when published.

~

2

JURISDICTION }

There is no jurisdiction to review the decision of the

Supreme Court of New Mexico for the reason that the con-

_ Stitutional questions raised by the petitioner for Writ of Cer- ©

tiorari were first presented to the Supreme Court of New

Mexico by Motion for Rehearing after the Opinion had been

written. The Motion for Rehearing was denied without Opin-

ion, and the Opinion of the Supreme Court was based on the

same construction and application of New Mexico law as the

Decision of the District Court.

QUESTION PRESENTED

Whether or not the Decision of the Supreme Court of N ew

Mexico violated petitioner’s rights under the Constitution of

the United States by denying him due process of law under

the provisions of the Fifth and Fourteenth Amendments to the

Constitution of the United States, or violated the full faith and

credit clause of Article IV, Section 1 of the Constitution rth the —

United States.

STATUTES INVOLVED

In addition to the statutes set out in Appendix “H” of the

Petition, the following is also deemed pertinent:

Rule 335, Vernon’s Texas Rules of Civil Procedure, Vol-

ume 3, compiled under Section 12, Review by District Courts

of County Court Rulings, Subsection A, Guardianships and

Estates of Decedents, reads, in material part:

“The appeal shall suspend the decision, order, decree,

or judgment, or the designated portion ‘thereof appealed

from, except as may be otherwise — provided by

law; * * *, -

STATEMENT

It is deemed necessary to supplement the Statement con-

tained in the Petition for Writ of Certiorari to provide cer- .

tain pertinent facts omitted therefrom.

\

3

Petitioner, John T. Chambers, seeks to recover for himself

the whole of his deceased uncle’s estate and. to deprive his

own brother and his own nephew’ from any share therein.

Under the applicable laws of descent and distribution, each

of said three heirs-at-law would receive an equal one-third

(1/3rd) share. ; | ‘

Petitioner’s effort is based on a purported Will which was

signed by his uncle in Dallas, Texas, in 1964, when D. P. Peck

was approximately 77 years old and had been mentally de-

ranged for some 54 years,‘and after petitioner had his uncle

released to his custody in 1963 from the Larned State Hospi-

tal for the Insane in the Staté of Kansas, had placed him in a

rest home in Dallas, and had himself appointed as Guardian.

in Dallas County, Texas, under a Petition alleging that his

uncle was still of unsound mind.

The whole of D. P. Peck’s estate stems from a single: half

section of land in Lea County, New Mexico, described as the

West Half (W%) of Section 26, Township 12 South, Range 37

East, N.M.P.M., on which Peck made his homestead entry on

February 25, 1909, and the whole of said estate was at all

times located and administered in the State of New Mexico ©

throughout the lifetime of D. P. Peck. After the original entry

in 1909, a Patent was finally issued on this half section on

August 21, 1931, to David P. Peck, with a later Patent being

subsequently issued on December 21, 1939, in lieu of and to

correct the previous Patent, which had erroneously contained’

a reservation of oil, gas and potash.

_ The events between 1909 and 1931 are especially signifi-

cant and appear from the certified and authenticated photo-

static copies of all the documents and records: of the General

Land Office relating to the issuance of these two (2) Patents,.

which were admitted into evidence in the hearing before the

District Court of Lea County, and which documents were cer-

tified under the seal of the General Services Administration,

National Archives and Record Service, as being on file in the

National Archives in Washington, D. C.

After making his homestead entry in 1909, Peck on Au-

4 (8

gust 14, 1912, naleniied his final proof, in which he stated

that he-first established his residence on, April 15, 1909, built

a house, dug a well, set up outbuildings, strung wire and cul-

tivated 40-80 acres each year from 1909 to 1912. He also re-

ported .occasional absences from the land, which in 1911 and

1912 added up to 5% months each out of the entire year. In

support of his proof, he submitted the Affidavits of two neigh-

bors, who swore to his entry and attual residence on the land

for three years. In his Notice of Intention filed on June 18,

1912, Peck stated his residencé as being Scott, New Mexico,

(now Gladiola, New Mexico) ; being the post office nearest the -

said land. |

On April 18, 1913, the General Land Office rejected Peck’s

proof under the Act of June 6, 1912, on the ground that for the

years 1911 and 1912 accumulated absences exceeded the max-

imum five months per year, but advised that new proof might

be made when five years residence were shown from April 15,

1909, under the five year law or under the three year law by

showing further residence of at least seven months since the

submission of the proof in question, No appeal having been

made therefrom, patent authorization was cancelled on Octo-

ber 14, 1913. Peck’s entry, however, subject to later proof,

still remained on file in the Land Office at Las Cruces, New

Mexico.

\

On December 22, 1927, the Land Office in Las Cruces sent

Peck notice that, unless he made final proof, his claim would

be forfeited and his entry cancelled. No reply having been

received from Peck (correspondence was mailed to an old ad-

dress), the General Land Office in Washington, D. C., .can-

celled his entry on April 19, 1928.

On July 22, 1929, D. P. Peck’s father, E. C. Peck, wrote to

the Commissioner of the General Land Office advising that he

had paid the taxes on the half section in question for the vast

sixteen (16) years on behalf of his son, and that he had only

recently become aware of the cancellation of his son’s entry,

and that he wished to have the entry reinstated. His letter

further states that his son, some months after receiving a Cer-

tificate that proof had been made, had returned to his parents’

5

home in Kingman, Kansas, in a deranged state of mina. For-

mal application: for reinstatement of the cantelled entries

were duly made. Supporting documents and affidavits reveal

that Peck was later adjudged insane on December 24, 1914 by

the Probate Court of Kingman County, Kansas, and committed

to the State Hospital for the Insane at Osawatomie, Kansas,

and in 1923 was transferred to Larned State Hospital for the

Insane at Larned, Kansas, his mental derangement having

existed for two or more years prior to December 24, 1914, when

he was adjudged insane. When transferred to the Larned State

Hospital, Peck was suffering from Dementia Praecox; paranoid

type, a psychosis, and it was at that time concluded that in all

probability he would be confined to an institution for the rest

of his life,

On May 1, 1930, the acting Commissioner of Lands wrote

the Register in Las Cruces reinstating the entry.-In part, the

acting Commissioner wrote:

“The entryman is evidently entitled to consideration

under the act of June 8, 1880 (21 Stat. 166). The fact of

the entryman’s insanity was unknown to this office at the

time his proof was rejected and at the time his entries ~

were canceled. ;

“Upon consideration of the case under the five year

law, it sufficiently appears that the entryman complied

with the law up to the time he became insane. The entries

‘now combined under one serial 040591, are, therefore, re-

instated.”

The entry was finally confirmed by the General Land

Office on July 14, 1931. In’1939, when a corrected Patent was

issued, eliminating the oil, Fi "gas and | potash reservation, the

Land Commissioner wrote: o,

“Later E. C. Peck, as guardian, filed an application

for reinstatement of the entries was allowed additional

time within which to make further showing. In this, it

was disclosed that the entryman was adjudged to be of

unsound mind on December 24, 1914, that he was found

8 ete eet ‘

\

\

\

Ne

"ee } —

to be mentally unsound for about two years prior to that

time, which would fix his period of incompetency as be-

ginning in 1912, and that the insanity continued and was

reported as incurable.”

Peck’s estate was always located and. administered in the

State of New Mexico; W. M. Beauchamp was appointed Guard-

ian of his estate in 1939 on the Petition of Peck’s mother, and

continued in that capacity until after Peck’s death and his ap-

pointment as Administrator. It is to be noted that W, M. Beau-

champ was appointed Guardian of the estate-some thirty years

before The Honorable Kermit E. Nash ever ascended to the

Bench. The District Court of Lea County in its-Decision found

that “there was and is no property of the decedent ‘in any

other state.” This finding was amply supported by the evi-

dence and was not attacked in any manner by the petitioner.

In 1963, when Peck was then 77 years old, his nephew, the

petitioner, had him released to his custody by the Larned

State Hospital. At this time, Peck was not cured of his mental

illness, his mental illness was incurable, but there was noth-

ing more that could be done in ¢he way of treatment; and

sir ce he was not violent, he could be cared for as well in a

rest home. The petitioner took Peck to Dallas and piaced him

in Terrell’s Rest Home. In September of 1963, the petitioner

had himself appointed as Peck’s Guardian in a Dallas Court,

attaching to his Petition a letter from a Texas doctor, which

stated that on August 1, 1963, he had examined Peck and

found him to be of unsound mind.and unable to manage his

personal affairs. It was following this, on May 12, 1964, that

Peck signed the purported Will leaving his entire estate to the

petitioner, or in the event of the prior death of petitioner, then

to petitioner’s children.

Within ten (10) days following Peck’s death on Septem-

ber 4, 1966, W. M. Beauchamp, through counsel, requested pe-

titioner to bring the purported Will.to New Mexico, where the

estate was located, and to offer it for probate, if petitioner ae

maintained it was a valid Will. This petitioner.never chose. to

do, and some five months later, said W. M, Beauchamp finally

7

commenced proceedings for administration of the estate in

New Mexico. |

At the hearing in the District Court of Lea County, the

Administrator offered by deposition the testimony of Dr. D.

H. Davis, a duly licensed medical doctor of the State of Kan-

sas, and a member of the psychiatric staff of the Larned State

Hospital, who had past personal acquaintance with Peck and

personal knowledge of his condition at the time he left Lar- °

ned. In addition, the Administrator offered the testimony of

Dr. Warren T. Brown, now of Albuquerque, New Mexico, who-~

listed among his qualifications teaching and serving as Chair-

man of the Department of Psychiatry and Mental Hygiene at

Yale University, neuro-psychiatric consultant to: the Wes Pa-

cifice‘Base Command during-World War II, and Proféssor and

Chairman of the Department of Psychiatry and Néurology at

Baylor University College of Medicine in the Texas Medical

Center in Houston, Texas. Petitioner counteredonly with T.

Mack Terrell, owner ‘and operator of Terrell’s Rest Home.

Counsel for: Détitioner in his Brief-In-Chief filed in the

New Mexico’Supreme’Court admitted with respect to his only

eo

Pa

witness, J. Mack Terrell, “It is impossible to point out ‘any -

one portion of Mr. Terrell’s testimony which would indicate

that David’P. Peck was in control of all his faculties in 1964

or that he was knowledgable of the natural objects of his

bounty or the nature of his,estate * * *.”

The hearing before the District Court of Lea County was

initially set for May 2, 1967. The Affidavit of Disqualification

filed by petitioner stated that none of the. three Judges of the

‘Fifth ‘Judicial District could, according to the belief of peti-

tioner, preside over the action with impartiality. These three

Judges were The Honorable George L. Reese,, residing at Ros-

well, Chaves County, New Mexico; The Honorable Caswell S.

Neal, residing at Carlsbad, Eddy County, New Mexico, and

The Honorable Kermit E. Nash, residing at Hobbs, Lea Coun-

- ty, New Mexico. This proposed disqualification was not made

on any constitutional grounds, as set forth in the N ew Mexico

Constitution, and was not accompanied by any motion, but

rather was merely an attempted. statutory disqualification,

8 i

which does not set forth any facts on which the alleged im-

partiality is based.

On May 1, 1967, counsel for petitioner served a Motion for

Continuance on counsel for the Administrator, and on May 8,

1967,, secured and filed an Order signed by District Judge -

Kermit E. Nash continuing the hearing to June 19, 1967. Pre-

vious to serving the Motion for.Continuance, petitioner’s coun-

sel had obtained the consent of the Administrator’s-counsel to

a continuance, and at that time stated he was aware that by . 2

obtaining an Order. for Continuance he, would be waiving the

Affidavit of Disqualification previously: filed. The Motion for

Continuance states as its.sole ground the fact that counsel had

not had sufficient time to properly prepare fer trial.

Following the entry of the District Court’s Decision, peti-

tioner in appealing to the New Mexico.Supreme Court, only

filed a Praecipe for a portion of the record, and in setting forth

his points to be relied on in the appeal, made no mention,

whatsoever, as to the attempted disqualification, on which he

now relies so strongly. Likewise, petitioner’s Brief-In-Chief in

the New Mexico Supreme Court contains no Point directed to

this question, but merely contains a short reference to it at

the end of the Brief. No mention is’made of the Fifth or Four-

teenth Amendments to the United States Constitution in either ©

petitioner’s Brief-In-Chief or Reply Brief in the New Mexico

Supreme Court under any of the Points therein raised: The

first mention of due process and equal protection appears in |

petitioner’s Brief in Support of Motion of Rehearing in the

New Mexico Supreme Court,

9

ARGUMENT

L

Certiorari Will Not Issue to Review a Decision of a State Court of

Last Resort on Constitutional Issues Presented for the First

Time on Motion for Rehearing. ‘

An unbroken line of decisions of this Court hold that cer-

tiorari will not issue to review a decision of the court of last

resort of a state upon Federal constitutional questions that

were not presented to the state court until motion for rehear-

ing afer final opinion..Typical of these cases.is the. case of

American Surety Company.v. Baldwin, 287 U.S. 156, 53 S.Ct.

98, 77 L.Ed. 231, 86 A.L.R. 298, (1912). The Court there said:

“The Surety Company petitioned for a rehearing. In

that petition, besides reiterating several of its previous

contentions, it urged, for the first time, that the rendition

of the judgment on its undertaking violated the due pro-

cess clause of the Fourteenth Amendment. The petition

was denied without opinion, The federal claim there made

cannot serve as the basis for review by this Court. The

contention that a federal right had been violated rests on

giving notice and an opportunity to be heard. The same

ground of objection had been raised throughout the pro-

ceedings but solely as a matter of state law. There had

been ample opportunity earlier to present the objection

as one arising under the Fourteenth Amendment. Com-

pare Corkran Oil & Development Co. v. Arnaudet, 199

U.S. 182,193, 50 L.Ed. 143, 149, 26 S.Ct. 41; Godchaux Co.

v. Estopinal, 251 U.S. 179, 181, 64 L.Ed. 213, 214, 40 S.Ct.

116; Live Oak.Water Users’ Asso. v. Railroad Commission,

269 U.S. 354.°357, 70 L.Ed. 305, 308, 46 S.Ct. 149. This is not

the action g the trial court in entering judgment without

a case where,.as in Saunders v. Shaw, 244 U.S. 317, 320, 61’

L.Ed. 1163, 1165, 37 S.Ct. 638, the federal claim arose from

the unanticipated disposition of the case at the close of

the proceedings in the state Supreme Court: Compare Ohio

ex rel. Bryant v. Akron Metropolitan Park Dist., 281 -U.S.

74, 79, 74 L.Ed. 710, 715, 66 A.L.R. 1469, 50 S.Ct. 228. Nor:

is the federal claim based, as in Brinerhoff-Faris Trust &

GREE A GY TO

10

Sav. Co. v. Hill, 281 U.S. 673, 678, 74 L.Ed. 1107, 1112, 50

S.Ct, 451, upon the unanticipated act of the state Supreme

Court in giving to a statute a new construction which

threatened rights under the,Constitution. Compare Mis- .

souri ex rel. Missouri Ins. Co. v. Gehner, 281 U.S. 313, 320,

74 L.Ed. 870, 875,. 50 S.Ct. 326.” —

- The case at big. does not come within any of the excep-

tions to the settled rule. The Supreme Court of New Mexico

denied the Motion for Rehearing which first raised the federal

constitutional questions without opinion, The ‘Decision of the

District Court and the Decision of the Supreme Court were

based upon the same construction and application of New

Mexico law. If a federal constitutional question was to be re-

lied upon, it should have been presented to the trial court, and

_in any event to the Supreme Court of New Mexico upon the

appeal and not for the first time-upon Mofion for Rehearing.

There was nothing in the Decision of the Supreme Court of

New Mexico that could in any manner be said to have pro-

duced an unanticipated result.

/

I.

Appropriate Procedures Were Available to Petitioner to Disqual-

ify the Trial Judge, and Petitioner's Failure to: Properly and

Timely Use Same, Cannot Be Considered a Denial of Due

Process. ;

In the State of New. Mexico, there are two types of dis-

qualification, i.e., constitutional and statutory. If a litigant

chooses to disqualify a Judge on a constitutional ground, it is

necessary that a motion, objection, or other appropriate

remedy be invoked calling the grounds of disqualification

to the Court’s attention and demanding a ruling thereon.

Gutierrez v. Middle Rio Grande Conservancy District, 34 N.M.

346, 282 P. 1, 70 A.L.R. 1261, (1929); Midwest Royalties . v. Sim-

mons, 61 N.M. 399,°301 P.2d 334, (1956). A statutory disquali-

fication is made by the filing of an Affidavit of Disqualifica-. .

tion stating that the Judge before whom the matter is to be.

. tried cannot preside over the same with impartiality, accord-

ing to the belief of affiant, without any facts or grounds being

or

°

—~,

—n., : .

1° ;

alleged, this method of a cacag being in the nature of -

@ personal privilege.

The application to dinguality. a Judge must be properly ~~

made. In re‘Fox West Coast Theatres, D.C: Cal., 25 F.Supp.

250, affirmed, C.C.A,, 88 F.2d 212, (1937), certiorari .denied,

Tally v. Fox Film Corporation, 57 S.Ct..944, 301 U.S. 710,.81.. ~

L.Ed. 1363, Rehearing denied, 58 S.Ct. 7, 302 U.S. 772, 82 L.Ed.

-598, (1937). This‘is true in the State courts of New Mexico as

well as elsewhere; an informal request is.not sufficient, Mid-

west Royalties v. Steamons, Supra. ; )

| ‘The Western Union aie letter sent on April 13, 1967, by

: petitidner to The Honorable Kermit E. Nash obviously could

not be considered a proper application for disqualiffication. ,

It apparently was based on alleged bias ‘and prejudice rather

than any constitutional grounds. It did not state that peti-

tioner was disqualifying the said Judge, but rather requested

the Judge to disqualify himself and-to récuse Sarai from the

matter. pear ee

‘

It is to be noted that the said night letter from the peti-

tioner further requested a postponement of the hearing set for

May 2, 1967,.and requested a return wire as to the Court’s

* action on the said request as to postponement, as well as to

ig disqualification.

That the disqualification-of a Judge may be waived, espe-

cially where it is not based on constitutional grounds, is well

supported by precedent. State ex rel. Lebeck’ 'v. Chavez, 45

N.M. 161, 113 P.2d 179, (1941); State v, Garcia, 47 N.M. 319,

142 P.2d 552, (1943); United States v. ‘Hethington, C.A.. IL,

279 F. 2d 792, cert. den., 81 S.Ct. 271, 364 U.S, 908, 5 L.Ed. 224,

(1960). In State ex. vel, Lebeck v. Chavez, the Supreme Court |

of New Mexico wrote:

“We can see no distinction between the right to waive

and the circumstances under which a party may waive.

such disqualification before having attempted to disqual-

“~~

ify.a judge, and the right to waive and the circumstances °

under which it may be done after the effort to disqualify.

Our attention has not been called to any. cases making

2

e

«

OIE POR LIO RMR ESTE

‘

> 12 —

such a distinction, where the right to waive exists in the

first place. We hold, therefore, that as to all causes of

action set forth,\petitioners have waived the question of

disqualification, regardless of whether they had at first

appropriately or irregularly attacked it.” —

After petitioner m@quested The Honorable Kermit E, Nash

to recuse himself amd to postpone the hearing, and did not

obtain’ a favorable response to either request, petitioner final-

dy on April 1967, entered an appearance in the matter

through Ne exico counsel, David L. Norvell, Esq., who

then on Ap filed petitioner’s Affidavit of Disquali-

fication, di against all three Judges, of the Fifth Judicial

District;‘coverng three Counties. He followed this with a°Mo-

tion for Continuance, mailed to opposigg counsel on May 1,

1967, and obtained an Order from The Honorable Kermit E.

Nash continuing the hearing to June 19, 1967. A further ver-

bal continuance was also obtained by petitioner’s counsel con-

tinuing the hearing to July 27, 1967.

The Supreme Court of New Mexico in its Opinion prop-

erly held that the action following the filing of the Affidavit

of Disqualification effectively waived any right of disqualifi-

cation claimed by petitioner. It is submitted that petitioner’s

request for a postponement by his night letter of April 13,

1967, would likewise constitute additional action, prior to the

filing of the Affidavit of aNaqualinontam, effectively wre

any right of disqualification.

‘In any event, having obtained the necessary continuances

to prepare for the hearing, petitioner never again raised the

matter of his attempted disqualification until the closing para-

graphs of his Brief-In-Chief before the New Mexico Supreme

-Court. Compare Rivera v. Hutchings, 59 N.M. 337, 284 P.2d

. 222, (1955), on which petitioner relies, where counsel consist-

ently through the trial and proceedings placed in the record

his objection to the Court proceeding, obviously preserving the

question for review, without waiver. If petitioner’s counsel

had desired to preserve any right of disqualification that he ©

may have had, an application to the New Mexico Supreme

Court for a Writ of Prohibition was also available, but was

not used,

\ 13

‘ The Opinion of the New Mexico Supreme Court that any

right of disqualification was effectively waived is undoubted-

ly correct. As to the assertions of lack of due process and equal

protection under the Fifth and Fourteenth Amendments, made

for the first time in petitioner’s Motion for Rehearing before

the New Mexico Supreme Court, petitioner’s own failure to

properly and timely use the procedural methods of disquali-

fication available to him cannot be considered as a denial of

due process and equal protection.

I.

- *,

The Refusal of the New Mexico District Court to Recognize Peck’s oy

Purported Will and the Pending Proceedings in the State of

Texas Did Not Violate the Full Faith and Credit Clause.

In petitioner’s appeal to the New Mexico Supreme Court,

petitioner based his contention that the District Court erred

in failing and refusing to, honor and recognize the pending

‘proceedings in Texas on the doctrine of comity, rather than

the full faith and credit clause of the United States Constitu-

tion. In his Brief-In-Chief filed in the New Mexico Supreme

Court, he ¢tates “A state court,, in conformity to state policy,

» by cemity, gives a remedy which the full faith and credit

clause does not compel.” It was not until his Motion for Re-

hearing was filed that he urged that the full faith and credit

clause had been violated.

However, under neither the rule of comity nor the full

faith and credit clause, was the District Court of Lea County

required to recognize Peck’s purported Will or the decree of

the Dallas County Court admitting it to probate in that Court.

The Order of the County Court of Dallas County has been

appealed from, and under the statutes of Texas (Vernon’s

. Texas Rules Annotated—Civil Procedure, Vol. 3, Rule 335) is

thus held in suspense. Since there is no finality, whatsoever,

to the said Order of the Dallas County Court, it is not entitled

to full faith and credit. In Chapman v. John St. John Drilling

Company, 73 N.M. 261, 387 P.2d 454, 457; (1963), the Supreme

Court of New Mexico stated:

°

14

7 (4f 5] It is not disputed that the award of the Tcxas

‘Industrial Accident Board has been appealed in the man-

ner provided by Texas law and that such appeal is now

pending and undisposed of. We are thus confronted with

the further question of whether the appeal denies the

-» Texas award that finality requisite to Invoke the full faith

and credit clause. In an excellent annotation on ‘Judgment

as res judicata pending appeal or motion for a new trial,

or during the time allowed therefor,’ in 9 A.L.R.2d 984,

993, the general rule is announced that under the full

faith and credit clause a foreign judgment is conclusive in

_another state only to the same extent it is conclusive in

the state where it was rendered. It follows that a deter-

mination by the courts of Texas as to the finality of its

_. judgment is controlling. It is well settled. in Texas that

- ‘an appeal from a judgment prevents its operation as res

‘ judicata.’ Sabine Pilots Ass’n v. Lykes Brothers Steam-

. .ship,-Inc. (Tex. €iv. App. 1961) 346 S.W.2d 166, 169; Ray

’ | wy. Hasley (5th Cir. 1954) 214 F.2d 366, 368.”

-. Even assuming that the Order of the County Court of

-Dgllas County was final, a New Mexico court would not be

bound under any doctrine of comity to admit the Will in New

Mexico, but would be entitled to re-examine the question of

’ the jurisdiction of the Texas Court. This is a well recognized

principle, and recognized by this Court. Burbank v. Ernst, 232

U.S. 162, 34 S.Ct. 299, (1914); Holland v. Jackson’, 37 S.W.2d

' 726, (Supreme Court of Texas, 1931); Barney v. Huff, 326

. §.W.2d 617, (Court of Civil Appeals of Texas, 1959); Page on

Wills, 1941 Ed., Vol. 2, $726, p. 397. In Burbank v. Ernst, supra,

'.. Wherein the Louisiana Courts had refused to recognize the

probate of a Will in Texas on the ground that the testator died

domiciled in Louisiana and thus the Texas Court had no jur-

‘isdiction, this Court upheld tHe Louisiana Court, and. used the .

- ee language:

“Of course, the jurisdiction of the Texas Court de-

* pended upon the domicile of Burbank, which therefore

was open to re-examination.”

The Texas Courts also recognize that no jurisdiction exists

15

to admit a Will in Texas if the decedent was not domiciled in

Texas and had no property therein on which the’ Will could

operate. Hardgrove v. De Tray, 34 S.W.2d 379, (Court of Civil

Appeals of Texas, 1931), affirmed, De Tray v. Hardgrove, 52

S.W.2d 239, (Commission on Appeals of Texas, rpperces A,

1932).

IV.

The Decision Below as to Peck’s Domicile and Mental Capacity

Is Based on a Proper erm of Precedents and Is Clear-

ly Correct.

The whole of Peck’s estate arises from the half section of

land in Lea County, New Mexico, on which a Patent was fi-

nally issued in 1931. The reinstatement of Peck’s homestead

by the General Land Office was based on the fact that Peck

became insane in 1912, before he left his homestead in New

Mexico, as well as on the fact that he had made an ventry, was

an actual bona fide resident on the land up to the time of his

insanity and had complied in good faith with the Jegal re-

quirements up to the time of his becoming insane. Title 43,

— US.C.A., $172. —

Since Peck was insane in 1912 before he left New Mexico,

he is presumed to have been incapable of changing his domi-

cile from the place it was when he became incompetent. In re

Collins’ Estate, 165 A. 285, 286, 11 N.J.Misc. 233, (1932); Cou-

youmjian v. Anspach, 103 N.W.2d 587, 594, 360 Mich. 371,

(1960); Sullivan v. Kenney, 126 N.W. 349, 358, 148 Iowa 361,

(1910); Commonwealth v. Kernochan, 106 S.E. 367, 129 Va.

405, (1921); State v. Superior Court of Thurston County, 255

P. 376, 143 Wash. 358, (1927); 96 A.L.R.2d 1236. Further, his

incompetency is presumed to continue until otherwise shown.

Stanley v. Campbell, 27 So.2d 411, 157 Fla. 891, (1946); Belk v.

Colleas, 61 S.E.2d 464, 207 Ga, 328, (1950); In re Peter’s Estate,

264 P.2d 1109, 1117, (1953); Davis v. Davis, 25 S.E.2d 181, 183,

223 N.C. 36, (1943); Barrows v. Mutual Life Ins. Co. of New

York, 48 N.M. 206, 147 P.2d 362 (1944); Bogel v, White, 168

S.W.2d 309, (Court of Civil Appeals o of Texas, 1942).

With these well recognized presumptions, the burden was

. 16

on petitioner to prove that somehow Peck had regained his

mental capacity. This he was unable to do. His only witness,

J. Mack Terrell, the owner and operator of the Rest Home

where Peck spent his last three years, did not so testify. Pe-

- titioner never did explain how, after in 1963 having himself

appointed as Peck’s guardian in Dallas on an application sup-

ported by a doctor’s affidavit that Peck was then of unsound

mind, he can now contend that Peck had regained his mental

capacity. As previously noted, the District Court in making its

decision had the benefit of the testimony of two doctors,

trained and experienced in psychiatry, one of whom was per-

sonally acquainted with Peck and had personal knowledge of

his condition.

With there being no satisfactory proof that Peck had ever

regained his mental capacity, the District Court was correct in

finding that Peck’s legal residency was still in New Mexico,

where he was domiciled when he became insane, and with the

whole of Peck’s estate being located in New Mexico and peti-

tioner refusing to bring the purported Will to New Mexico

and offer it for probate, the District Court was fully entitled

“to proceed with determining heirship under the applicable

New Mexico statutes in the proceedings in which said estate

was being administered,

The petitioner in his Petition for Writ of Certiorari speaks

of “plain fairness” and “simple justice,” yet. he seeks to gain

the whole of his deceased uncle’s estate, and to deprive his

own brother and nephew of any share therein. What could be

fairer and more just than to divide the Peck estate in equal

shares among the three heirs-at-law, just as the District Court

of Lea County did, and which the Supreme Court of New

- Mexico affirmed,

17

CONCLUSION

For the foregoing reasons, the Petition for Writ of Cer-

tiorari should be denied.

“ Respectfully submitted,

Merritt L. Norton.

and

A. M. SWARTHOUT

Counsel for Respondents

CERTIFICATE OF SERVICE

_ Merrill L. Norton, one of the attorneys for Respondents

_herein, and a member of the Bar of the Supreme Court of the

United States, hereby certify that on this.22@....day of Sep-

_ tember, 1969, I served copies of the foregoing Brief For Re-

spondents In Opposition on counsel for petitioner by mailing

said copies in duly addressed envelopes, with first class post-

* age prepaid, to petitioher’s respective attorneys of record, as -

follows: F

WILLIAM C. ODENEAL, JR.

511 Adolphus Tower

Dallas, Texas 75202

J. REDWINE PATTERSON

Praetorian Building

Dallas, Texas 75201

M L. Norton

Post Office Drawer 1567 |

Lovington, New Mexico 88260

a