We concur in so much of the prevailing opinion as holds the parties not entitled as a matter of right to a jury trial of the issues presented. The jury was thus present in an advisory capacity. This is certainly true of the last two trials. Throughout such trials counsel for all parties as well as the trial judge either openly agreed such was the jury's status or acquiesced in the claim that its function was advisory to the chancellor. In this conclusion, we think all were correct as held by the majority.
We dissent from that part of the prevailing opinion which denies to relators a peremptory writ of mandamus directing the district judge to proceed further without the intervention of a jury. Thus far the jury's presence is explained as a potential aid to the trial judge in deciding the facts. The reasonable hope that it might so aid furnished, in the first instance, in the second instance, and in the third instance, the sole legal warrant for calling in a jury. The chancellor's right within his discretion to seek this aid cannot be questioned. 21 C.J. 585, § 721 under "Equity"; Huntington v. Moore, 1 N.M. 489, 501. But when the issues involved have been submitted to a jury three times without result, we consider it no longer reasonable to hope that the aid which alone warrants its presence will ever be rendered.
In our view, an affirmative answer to the inquiry whether we should direct issuance of the writ if relators were here seeking it after the fourth, the fifth, the sixth, or even the tenth mistrial before a jury, is decisive of relators' right to the writ. In other words, may we in a case of this kind grant the writ at all? Of course, if we are without power to exercise any control over the discretion of the chancellor in such a case, that ends the matter. The majority then necessarily are correct. We do not understand them to hold, however, that a time might not come, through constantly recurring mistrials before a jury, when they would say it amounted to an abuse of discretion by the chancellor not to decide the case himself. If we correctly understand the majority view, we disagree only in respect of whether that time has yet arrived. We think it has, and would award the writ at this stage. The majority withhold it for the present.
It must not be forgotten that even with a jury the ultimate decision on the facts, as well as the law, rests with the chancellor. Hence, the jury's function is purely incidental. Its verdict may be disregarded or accepted, in whole or in part, according to the weight given it by the chancellor. 21 C.J. 596.
Bearing in mind this purely incidental function on the part of the jury, remembering that the ultimate decision abides *Page 341 always with the chancellor, should the failure to function of that which is but an incident be permitted to postpone interminably a decision by him who ultimately must decide at all events? We think not. In equity the jury is but an arm of the chancellor in arriving at the true facts. If, after repeated efforts, it fails to function, it becomes a useless appendage and should be eliminated.
Had there been three mistrials of this case before the court without a jury, if such a result be conceivable, none would gainsay relators' right to ask, nor our duty to direct, a decision in the matter. Seen through, and in so far as the analogy bears upon the chancellor's right to award a fourth jury trial, that in substance is the case presented. For at each trial save the first, which was treated by all as a law action, the ultimate decision on the facts resided in the chancellor, with or without a verdict.
In fairness to the respondent judge it should be said that he confesses no inability to decide, if so directed. At the trial before us he frankly stated he could and would decide the case, if, in our judgment on the facts presented, we considered he no longer possessed the right to seek the advice of a jury. But both as a witness and in his return to the order to show cause he made it plain that he desires the aid of a jury verdict in deciding the issues.
Only two issues on the facts present themselves: (1) Is Arturo Sandoval the illegitimate son of Filiberto Gallegos? (2) Did Filiberto Gallegos during his lifetime notoriously and generally recognize him as such? *Page 342
Indeed, the last issue is a mixed one of law and fact and some question arises and is suggested concerning the right to submit such an issue to a jury sitting in an advisory capacity. But granting the right to submit it, the issues are few and clear cut. Simple as they are we may concede some difficulty in sifting the kernel of truth from a mass of conflicting testimony. Even so, an application of well-established principles touching the burden of proof or the duty of going forward with the evidence determines the result.
That this court in a proper case has power by mandamus to direct a district judge to proceed in a cause, or render some judgment without indicating the character of judgment where the case is ripe for judgment, has been recognized by judicial statement both in territorial days and since statehood. Territory v. Ortiz, 1 N.M. 5; Branford v. Erant, 1 N.M. 579; Sweeney v. Raynolds, 17 N.M. 282, 127 P. 23; National Mutual Savings Loan Ass'n v. McGhee, 38 N.M. 442, 34 P.2d 1093.
In State ex rel. City of New Orleans v. Judge of Civil District Court for Parish of New Orleans, 52 La. Ann. 1275, 27 So. 697, 51 L.R.A. 71, the Supreme Court of that state, in the exercise of the supervisory control granted it by the Constitution over all inferior courts, issued the writ of mandamus to correct an abuse of discretion by the trial judge. A similar grant of *Page 343 jurisdiction to exercise superintending control over all inferior courts is conferred by our Constitution on this court with power to issue writs of mandamus and all other writs necessary or proper for the complete exercise of said jurisdiction.
It seems well settled, too, that a court of review in aid of its appellate jurisdiction has power by mandamus to direct the trial court to proceed to final judgment. Knickerbocker Ins. Co. v. Comstock, 16 Wall.(83 U.S.) 258, 270, 21 L. Ed. 493; McClellan v. Carland, 217 U.S. 268, 30 S. Ct. 501, 504, 54 L. Ed. 762; Barber Asphalt Paving Co. v. Morris, Judge (U.S.C.C.A. 8th Circuit) 132 F. 945, 953, 67 L.R.A. 761.
In Knickerbocker Ins. Co. v. Comstock, supra, the court said: "Repeated decisions of this court have established the rule that this court has power to issue a mandamus, in the exercise of its appellate jurisdiction, and that the writ will lie in a proper case to direct a subordinate Federal court to decide a pending cause. Marbury v. Madison, 1 Cranch [137] 175 [2 L. Ed. 60]; Kendall v. United States, 12 Pet.[524] 622 [9 L. Ed. 1181]. Power to issue the writ of mandamus to the Circuit Courts is exercised by this court to compel the Circuit Court to proceed to a final judgment or decree in a cause, in order that this court may exercise the jurisdiction of review given by law."
In the McClellan Case, supra, the same court made it plain that prior invocation of its appellate jurisdiction is not a prerequisite to awarding the writ. It said: "There are not wanting decisions in the Federal courts, holding different views as to the right to issue such writs as are involved in this case, before the appellate court has actually obtained jurisdiction of the case. There are expressions in opinions of this court to the effect that such writs issue in aid of a jurisdiction actually acquired. But we think it the true rule that where a case is within the appellate jurisdiction of the higher court, a writ of mandamus may issue in aid of the appellate jurisdiction which might otherwise be defeated by the unauthorized action of the court below."
In Barber Asphalt Paving Co. v. Morris, supra, the United States Circuit Court of Appeals of the Eighth Circuit spoke through Judge Sanborn on the extent of this jurisdiction, as follows:
"There is no dissent among courts or lawyers from the proposition that the national courts may issue the writ either in the exercise of or in aid of their appellate jurisdiction. The only question here is whether they may issue it in aid of that jurisdiction whenever it exists, or only when it has been actually invoked by a writ of error or by an appeal. This question has now been ably and exhaustively argued by counsel for the respective parties to this application. All the authorities upon it appear to have been called to our attention, and it has again received the thoughtful and deliberate consideration of the court in the light of the numerous decisions which have been cited. It is obvious that the primary reason for the grant to the federal appellate courts of the dominant power to issue their writs of mandamus to the inferior courts in the exercise of and in aid of their appellate jurisdiction was to enable them to protect that jurisdiction against possible evasions of it. It is not less evident that the grant must in many, nay, in most, cases, fail to accomplish its chief end if the power to issue the writ can be exercised only after the appellate jurisdiction has been actually invoked by an appeal or by a writ of error. Under the acts of Congress the proceedings in every suit in the Circuit Court of the United States are now reviewable either in the Supreme Court or in the Circuit Court of Appeals. The moment such a suit is commenced, the appellate jurisdiction over it exists, the power and the right to ultimately review the proceedings in it are vested in one of the appellate courts. But in the great majority of cases it is only by an appeal or by a writ of error which challenges the final decision in the case that any of the proceedings in it may be reviewed. The opportunities for subordinate courts to evade the jurisdiction of the appellate courts, to prevent the exercise of this jurisdiction, and to destroy or make ineffectual the right of the unsuccessful party to review their rulings by failures to settle bills of exceptions, by unreasonable delays, by stays of proceedings, and by direct and indirect refusals to proceed to final judgments and to their enforcement are far more numerous before the writs of error or the appeals can be taken than they can be thereafter. Few, indeed, are the cases in which appellate jurisdiction is disregarded after the right to it has been actually exercised. But many cases arise in which the acts or orders of the inferior courts, unless corrected by the writ of mandamus, prevent the exercise of appellate jurisdiction and destroy its effect before any final decision which may be challenged by appeal or writ of error has been reached. * * *
"The reasons and decisions to which we have now adverted have impelled our minds with irresistible force to the conclusion that the true test of the appellate jurisdiction in the exercise or in the aid of which the Circuit Courts of Appeals may issue the writ of mandamus is the existence of that jurisdiction, and not its prior invocation; that it is the existence of a right to review by a challenge of the final decisions, or otherwise, of the cases or proceedings to which the applications for the writs relate, and not the prior exercise of that right by appeal or by writ of error; and that the power of those courts to issue the writ is not restricted as was stated in United States v. Judges of the United States Court of Appeals of the Indian Territory, 85 F. 177, 29 C.C.A. 78, to cases in which their jurisdiction has already been invoked by other proceedings."
We entertain no doubt of this court's power to award the writ, and think this an appropriate case for exercise of the power. A large estate has been involved in costly litigation for several years. Intervener, if *Page 344 his claim be sustained, is entitled to share in the distribution of that estate. Avoidable delay in deciding the case either keeps him from his rightful inheritance or postpones distribution to the other lawful heirs. In the meantime, all parties in interest must stand by and see a substantial part of the inheritance consumed in a wasteful and seemingly endless litigation. Is the judicial machinery helpless in such a situation? We do not think so. Sound reason and high authority point to mandamus as the appropriate remedy.
Intervener contends with great earnestness that even if the writ should issue, the right to which is vigorously challenged, it should do no more than direct the trial judge to proceed without a jury. The difference in the method of presenting a case before a jury as contrasted with that employed in a court trial is pointed out. There is authority supporting intervener's contention to a certain extent. In 21 C.J. 596, the text states: "The court may adopt or reject the findings in whole or in part, and in lieu of those not adopted, may make findings of its own. It has been held, however, that when a submission is made to a jury as though they were the ultimate triers of the facts, the court cannot thereafter arbitrarily determine the case itself without giving the parties a hearing of some kind and to some extent."
See, also, Vickers v. Buck Stove Range Co., 65 Kan. 97,68 P. 1081.
The issues having been developed at the third trial in the light of two previous trials, it would seem useless and unnecessary to have a complete retrial of this case. However, this is a matter which we feel may properly be left to the discretion of the trial judge. Feeling there is some merit in this contention, it is our conclusion that a peremptory writ of mandamus should issue directing the respondent district judge to proceed to a decision in the case without the intervention of a jury and with or without the taking of additional testimony, as his discretion shall determine. For the reasons given, we disagree with the prevailing opinion to the extent that it withholds the actual award of a writ so drawn.