Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-08-09

OPINION.
BY BeIknap, J.
The relatOr brings mandamus to
compel respondent as District Judge.
to approve or reject that certain claim
OF relatOr for the sum of $19.36O.98 !
against the estate of Evan Williams.
deceased, which claim had been duly I
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 up |
on the admitted fact that he is a |
stOckho,der 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 davisee OF his last will
and testament, and creditor Of the !
deceased, having filed her claim again !
at the oafo+~ r - -. --Ai..L !
-. o. ueceaSeu, upon "...~-- +,
claim she had OBJECTED to respondent
taking any action for the reasons set
up in respondent answer to REALTORS
petition, and that respondent had
failed and refused to call another
Judge, as required by law, to act
upOn her said claim. She asked the
peremptOry writ issue against respCn-
dent compelling him to call another
judge.
1t is averred and not denied that the
estate of Williams in insolvent. the
pleadinge present many other facts
which we do not dpen material. OBJ
lection was made to the intervention
at the proper time by reiator and re-
spondent, but the court made an or
der allowing the Intervention. It has
been settled by the decisions OF this
court Estate v. Gracey II New. 223:
State V. Curler, 81 Pac. 1879 that a
proceeding III mandamus, under our
practice act regulating the same. is
a civil remedy with the qualities and
attributes Of civil action. BY Sec
ton 500 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 in
tarest in the matter in litigation, in
the success of either Of the parties to
the action or an interest against both
Under the facts Of this statutory
rule. we are OF the opinion that the
intervenoH as q claimant against the
estate has such an interest in the sub
iect matter and interest against boti
as authorized the order Of intervention
She is certainly interested as clam
an, against this insolvent estate IL
having qualified Judge called 10 pass
upon. not only the realtors claim
hut her claim also. The approval o
claims by the District Judge, unde
the act regulating the settlement o
estates Comp. Laws. 1900. Sec2S9
gives them the rank Of acknowledge
debts AGAINST the estate, and author
ICES their payment in the course o
administration. and While 1t Is fFl
that objections may be made on tina
accounting yet the declared polio
of the law is the speedy and inexper
sive settlement of estates. 1t follow
therefore. that the validity or invalid
ity of claims against esta.es should b
determined before payment. and ret q
held in allegiance until final accom-
by the action OF a disqualified Judge.
The answer OF respondent to rels
tors petition shows. as we belieN'
such ar interest. under the facts. 4
would disqualify him to act upon =
lators or interyenors claim under Il
rule OF the common law or the rule {
our Civil Practice Act if such TIL
should prevail in probate proceedirg
It is the rule OF the common law TIL
a nudge shall not hear and determlI
actions in which he is intereste
Cooley Const. Lin. D SEQ; STATE
Crane. 81; n J. l.. 3at. Bank vM
CURE AZ L. r. A. 413e, and it is the e
press declaration OF our statute ICON
Laws, 1900. Sec. 2545) that jud'
shall not act in an action or proceediI
in which he is interested. Under tn
statutor rule. this court has held tn
the action of a disqualified judge
absolutely VOID.
Frevert \. Swift. 10 New. 1854;
State Y. Moves. 25 New 40.
Jurisdiction Of probate matters
vested by ont constitution in the u
trict Courts and if there were no 9th
provision Of law than .hc section
the Civil Practice Act, supra,
would be disposed to hold that its Ia
guage was sufficiently broad 10 {
ply TO proceedings in probate;
We are not left in doubt as to WI
the rule should be, as the Legs
ture in the act regulating the sett
ment of estates of deceased perso
Comp Laws. 1900, Secs. 1869 a
2S7O has declared in substance and
effect the same rule prevailing unf
the Civil Practice Act in civil actict
BY section 2S69.supra. it is proyid
that no District Judge shall admit a
will or probate or grant letters t
tamentary or administration in a
case where he shall! be interested
next of kin to the deceased, or as
legatee or devisee under the will.
when he shall be named as executor
trustee in the will or shall be a v
ness there to.
Nv Section 2S7Osupra, it is decla1
when any District Judge who wo
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