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.
I believe that Laws 1933, c. 184, is available to a party in a proceeding to remove or "appeal" a probate proceeding to the district court in the method provided by 1929 Comp.St., § 34-422 et seq., just as much as any other proceeding, whether it be denominated civil or special. I am satisfied that the Legislature, when it enacted chapter 184, did not contemplate a group of "proceedings" wherein the presiding judge might be prejudiced or biased and permit litigants to disqualify the judge in such cases only, and deny the right in other "proceedings" even though the judge be biased or prejudiced.
We said in State ex rel. Simpson v. Armijo, 38 N.M. 280,31 P.2d 703, 704: "If the enactment of this law is the declaration of a policy that our courts must be freed from suspicion of unfairness and is grounded upon the truism `that every citizen is entitled to a fair and impartial trial, and this right is sacred and constitutional, State ex rel. Hannah v. Armijo, supra,' such right is as sacred to a litigant in a *Page 73 special proceeding or one cited for contempt as it is to a litigant in a tort or contract action," and we held: "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."
If plainer language be needed than the above to indicate that chapter 184 is applicable to any and every kind of action, proceeding, suit, or even "matter" that may be properlylitigated before a district judge, then I am at fault, inasmuch as I wrote the opinion for the court in the State ex rel. Simpson v. Armijo Case.
At the present time the proceeding instituted in the district court of Quay county wherein F.L. Beal, the special administrator, seeks to remove the probate proceeding to the district court as provided by section 34-422 et seq., it is purely ex parte in so far as the relator is concerned, and is at this time not an adversary proceeding. The affidavit of disqualification was prematurely filed in that the probate proceeding is not yet pending in the district court, because no order of removal has been entered. The statute, section 34-422, does not contemplate an adversary proceeding. No notice to any party is provided for or required. If the jurisdictional grounds for removal appear on the face of the petition, the district judge can only exercise a legal discretion and enter his order to remove.
If, however, a fraud has been imposed upon the court by the petitioner and the jurisdictional grounds for removal actually do not exist, or a mistake has been made and an order of removal has been entered upon a petition of a party who has no standing in court, then a motion to remand might be considered. Upon such a motion being filed, necessary parties being noticed to appear, an issue is raised. The issue is made up if the motion to remand is resisted. At that time, the relator, if she be the movant for remand, could file her affidavit of disqualification. In other words, until a motion to remand has been filed the statute providing for the removal of probate proceedings to the district court does not contemplate that the proceeding will produce an issue or an adversary proceeding. Until, in an orderly manner, an issue is made or it becomes a proceeding in which an issue is contemplated, no affidavit of disqualification may be effective.
To hold otherwise would lead us, logically, to permit a prospective respondent in mandamus, injunction, or prohibition to file an affidavit of disqualification against the judge of the district who is about to issue an order to show cause upon a proper complaint. The irreparable harm to permit that to be done is obvious. Carrying the analogy to its final and absurd conclusion, we would be led to hold that a prospective defendant, upon hearing he may be sued, could file an affidavit of disqualification even before a complaint has *Page 74 been filed. I concur in the conclusion reached by Justice BICKLEY and hold that the writ of prohibition in this case should be denied.