I concur in the result. The petitioners continued to invoke action by the district judge, notwithstanding he was powerless to act if the affidavit of disqualification filed by them was still efficacious. I agree with what the opinion of Mr. Justice MABRY has to say on the question of waiver. In so far as the result declared rests on that ground I am in full agreement with it.
I disagree with the declaration that a party seeking to intervene in another suit or action is to be denied the benefit of L. 1933, c. 184, relating to the disqualification by affidavit of a judge believed to be prejudiced. The opinion successfully demonstrates that until a litigant has been permitted to intervene he is not a "party" to the main action. Indeed, the mere statement of this proposition proves it. But *Page 175 this conclusion does not detract from the character of such a one as the "party" to the collateral proceeding whereby he seeks to become a "party" to the main action.
The statute is very broad. Subject to the condition named, it grants the right of disqualification to a party to "any action orproceeding," etc. (Italics mine.) L. 1933, c. 184. Certainly, when a litigant files a petition in intervention he inaugurates a "proceeding" to which he is a party, and if he believes the judge prejudiced, he may avail himself of the statute for the purpose of the hearing on his right to intervene. The mere fact that the proceeding is collateral to another action or proceeding is immaterial. State ex rel. Simpson v. Armijo, 38 N.M. 280,31 P.2d 703. Cf. Hammond v. District Court, 30 N.M. 130, 228 P. 758, 39 A.L.R. 490. In the Simpson case [38 N.M. 280, 31 P.2d 704], we said: "When the Legislature enacted into the law the word `proceeding,' it must be assumed that it had in contemplation contempt proceedings as well as all proceedings whatsoever, which might be held not to fall within the denomination of actions."
The views expressed in the specially concurring opinion of Mr. Justice Zinn and in my dissenting opinion, the latter being concurred in by then Chief Justice Hudspeth, in State ex rel. Sartain v. Patton, 42 N.M. 64, 75 P.2d 338, 343, the three of us making up a majority of the court as then constituted, seem clearly to hold by analogy that a petition for leave to intervene in a suit or action is a "proceeding" within the statute construed. There the question was whether a petition to remove administration proceedings on an estate from the probate into the district court pursuant to 1929 Comp. 34-422 et seq. was a "proceeding" within the statute. The majority on the court were very distinctly opposed to the view of the minority on this point composed of Mr. Justice Bickley and Mr. Justice (now Chief Justice) Brice that the petition to remove was not a "cause" or "case" (treated synonymously with "action or proceeding"), within the statute. It was only because Mr. Justice Zinn deemed the affidavit of disqualification prematurely filed that he did not join with then Chief Justice Hudspeth and the writer of the present opinion in making permanent the alternative writ of prohibition rather than dissolving it. This is made plain by the first paragraph of Mr. Justice Zinn's opinion in the Sartain case. It reads: "I concur in the result arrived at by Mr. Justice Bickley. My concurrence, however, is not to be deemed as an agreement or concurrence in his opinion or the reasoning therein contained."
It often is the case that an intervenor may protect his rights as effectively by separate action as through intervention. But often it is otherwise and notwithstanding the right to sue separately, the litigant may suffer great prejudice unless permitted to intervene and set up his rights in a pending action. Hence, intervention is an important right and the party is not to be denied benefit of the statute on the *Page 176 assumption that he may just as effectively proceed by separate action; nor by the consideration that even if he got in he might have to try his case before the very judge whom he had disqualified by affidavit from hearing the proceeding on his petition to intervene. The all important thing to him may be the right to be heard in the pending suit or action.
The time element mentioned in the prevailing opinion is not so important. This factor enters into every disqualification made under the statute or may do so. It was not thought sufficient by the legislature to withhold the right to disqualify in an "action" and must be held of no greater force as to a "proceeding", even though the proceeding be one for leave to intervene in a pending action.
If the appearance of a party seeking intervention should disclose a constitutional ground of disqualification, not theretofore present or suspected, it cannot be supposed that by seeking intervention the petitioner waives his constitutional right to remove a judge thus disqualified in fact from hearing his petition in intervention. Considerations of convenience may not override the constitution. Neither do they outweigh the positive statutory right to remove a judge on a sworn imputation of prejudice.
If the opinion of Mr. Justice MABRY rested solely on the holding that the statute is inapplicable to a hearing on a petition to intervene, I should be compelled to dissent generally. Since it rests mainly on waiver, I concur on that ground alone.