State Ex Rel. Del Curto v. District Court of Fourth Judicial Dist.

McGHEE, Justice.

This is an original action seeking to prohibit a retrial of Burguete v. Del Curto, which involves the * ownership of a state grazing lease, in which we reversed the judgment of the district court because the state was not a party to the suit. Burguete v. Del Curto, 49 N.M. 292, 163 P.2d 257.

A mandate was issued directing the district court to vacate its judgment and dismiss Burguete’s cause of action, but a majority granted a motion to recall the original mandate and ordered the issuance of a new one in which the direction to dismiss was omitted. The Commissioner of Public Lands then entered a limited appearance as a defendant in the lower court. For the purpose of this case only we will treat it as a general appearance on his part.

We held in State ex rel. Evans v. Field, 27 N.M. 384, 201 P. 1059, and in State ex rel. Otto v. Field, 31 N.M. 120, 241 P. 1027, that an action against the Commissioner of Public Lands, except to compel the performance by him of a ministerial duty, is an action against the state, which may not be maintained without its consent.

The only authority which may give this consent is the legislature. We hold that the attempt of the Commissioner of Public Lands to make the state a party defendant was a nullity, and that, therefore, it is still not a party to the suit.

We must hold, therefore, that the order modifying the mandate in Burguete v. Del Curto, supra, was improvidently made; that the district court is without jurisdiction to do anything in the case except to dismiss it as directed by the majority opinion in Burguete v. Del Curto, supra.

The alternative writ of prohibition heretofore issued will, therefore, be made absolute, and it is so ordered.

BRICE, C. J., and LUJAN and COMPTON, JJ., concur.