Alzugaray v. Onzurez

• Court: New Mexico Supreme Court
• Writing for the Court: RAYNOLDS, J.
• Citation: Alzugaray v. Onzurez, 25 N.M. 662, 187 P. 549, 1920 NMSC 10 (N.M. 1920)
• Decision Date: 31 January 1920
• Docket Number: No. 2367.,2367.
• Parties: ALZUGARAYv.ONZUREZ et al.

25 N.M. 662

187 P. 549

ALZUGARAY

v.ONZUREZ et al.

No. 2367.

Supreme Court of New Mexico.

Jan. 31, 1920.

Syllabus by the Court.

The provisions of Soldiers' and Sailors' Relief Act March 8, 1918, c. 20, § 200, 40 Stat. 441 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3078 1/4bb), requiring the plaintiff, before entry of judgment against a defendant in default, to file an affidavit that defendant is not in the military service, does not entitle the defendant, who was not in such service, to set aside a default judgment against him, where such affidavit was not filed before default judgment was taken.

Such failure by the plaintiff to file such affidavit before taking default judgment is not an irregularity for which judgment may be set aside under section 4230, Code 1915.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Irregularity.]

Appeal from District Court, Eddy County; Richardson, Judge.

Suit to quiet title by Francisco Alzugaray against Primo Onzurez and unknown claimants interested in the premises adverse to plaintiff. Judgment for plaintiff by default, motion to set aside the default judgment overruled, and from a subsequent order setting aside the default, plaintiff appeals. Reversed, with instructions to deny the motion and to reinstate the judgment.

Such failure by the plaintiff to file such affidavit before taking default judgment is not an irregularity for which judgment may be set aside under section 4230, Code 1915.

J. M. Dillard, of Carlsbad, for appellant.

Chas. H. Jones, of Carlsbad, for appellees.

RAYNOLDS, J.

This is a suit to quiet title brought by the appellant against the appellee and unknown claimants of an interest in certain property sold to the appellant at a tax sale. Judgment was obtained by default against appellee on November 7, 1918. On January 7, 1919, appellee filed a motion to set aside such default judgment, which motion was overruled on the ground that it was not filed within 60 days from the date of the entry of the judgment, as is required by section 4227, Code 1915. Subsequently, on the 5th day of February, 1919, appellee filed a second motion to set aside the judgment of November 7, 1918, on one ground only, namely, that before entering judgment appellant, plaintiff below, had failed to file an affidavit showing the fact that the defendant Onzurez was not in the military service of the United States, as is required by 40 Stat. at Large, 441, c. 20, art. 2, § 200 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3078 1/4bb). This motion was sustained by the trial court, and the default judgment set aside. An affidavit was subsequently filed by the appellant on February 4, 1919, which complied with the statute heretofore referred to. The record in this case further shows that the defendant was not in such military service. From the order setting aside the default judgment this appeal is taken.

[1] The federal statute under which the default judgment was set aside, so far as it is applicable to this case, is as follows:

“3078 1/4bb. Default Judgments; Affidavits; Bonds; Attorneys for Persons in Service.-In any action or proceeding commenced in any court if there shall be a default of an appearance by the defendant the plaintiff before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. *** And no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest and the court shall on application make such appointment. Unless it appears that the defendant is not in such service the court may require as a condition before judgment is entered that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, if in military service, against any loss or damage that he may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. And the court may make such other and further order or enter such judgment as in its opinion may be necessary to protect the rights of the defendant under this act.

(2) Any person who shall make or use an affidavit required under this section knowing it to be false shall be guilty of a misdemeanor and shall be punishable by imprisonment not to exceed one year or by fine not to exceed $1,000, or both.

(3) In any action or proceeding in which a person in military service is a party if such party does not personally appear therein or is not represented by an authorized attorney, the court may appoint an attorney to represent him; and in such case a like bond may be required and an order made to protect the rights of such...