Arthur v. Garcia
Decision Date | 11 September 1967 |
Docket Number | No. 8352,8352 |
Citation | 431 P.2d 759,78 N.M. 381,1967 NMSC 205 |
Parties | Jack ARTHUR and United Services Automobile Association, a Reciprocal Inter-Insurance Exchange, Plaintiffs-Appellants, v. Richard GARCIA, Defendant-Appellee. |
Court | New Mexico Supreme Court |
Suit was filed in Bernalillo County, New Mexico, by Jack Arthur and United Services Automobile Association, plaintiffs-appellants, against defendant-appellee, Richard Garcia, to revive a judgment rendered on January 30, 1957, in favor of appellant Jack Arthur in the amount of $50.00 and in favor of appellant United Service Automobile Association for $593.31. Judgment was rendered in favor of appellee and appellants appeal.
Suit was filed December 15, 1964, and an amended complaint was filed on January 12, 1965, alleging that appellants obtained judgment against appellee on January 30, 1957; that appellee entered the military service about February or March 1957; that he remained in the service continuously for more than one year; and that no part of the judgment had been paid. Appellee's answer admitted that appellee was in the military service for two years from January 28, 1957; that the action was barred by the Statute of Limitations ; that the judgment referred to in the complaint was void, because appellee was not served with process; and that the complaint was void because of a failure to comply with the Soldiers' and Sailors' Civil Relief Act. The trial court ruled in favor of appellants on all issues, except that the complaint was void because of a failure to serve appellee with process. The trial court made the following findings of fact, which are material to this appeal:
'3. That the Court therefor amends the pleadings to include a counterclaim by the defendant which reads as follows:
COUNTERCLAIM
Defendant for his counterclaim against the plaintiffs alleges: That the original judgment contained in cause numbered 66942 is void for the Defendant was never served with a copy of the summons and complaint in the action numbered 66942 in this court.
WHEREFORE, Defendant prays that the judgment in cause numbered 66942 be declared null and void.
Appellants argue that the trial court erred in failing to adopt the following requested conclusions of law:
The question presented by this appeal is whether or not the trial court was correct in holding the judgment in cause No. 66942 void because of lack of service on appellee, notwithstanding the fact that the record in cause No. 66942 shows that service was made. Appellants contend that, in a suit to revive a judgment, the defense, that the defendant was not served with process in the original action, is not available to the defendant if the judgment sued upon is regular on its face. Appellee's argument appears to concede that a judgment, which appears to be valid so far as the record is concerned, cannot be collaterally attacked. He argues, however, that the attack made in the instant case is not collateral, but a direct attack. Appellee quotes, in part, the following statement from 30A Am.Jur. 776, § 862:
'* * * (T)he defense to an action on a judgment that the court which rendered it did not acquire jurisdiction of the debtor has been held to be in the nature of a direct attack upon the judgment.'
Appellee also argues that Barela v. Lopez, 76 N.M. 632, 417 P.2d 441, supports his contention.
We cannot agree. The section quoted above by appellee from 30A Am.Jur. § 862, appears to be the minority rule. Neither do we agree with appellee's interpretation of Barela v. Lopez, supra. We note that in City of Albuquerque v. Huddleston, 55 N.M. 240, 230 P.2d 972, this court stated:
In McDonald v. Padilla, supra, ...
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...defense short of absolute nullity of the original judgment can be raised”), cert. denied, 362 So.2d 579 (La.1978); Arthur v. Garcia, 78 N.M. 381, 383, 431 P.2d 759 (1967) (concluding that collateral attack in revival proceeding on original judgment not permitted unless lack of jurisdiction ......
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