Atler v. Stolz
| Decision Date | 25 October 1934 |
| Docket Number | No. 3967.,3967. |
| Citation | 37 P.2d 243,38 N.M. 529 |
| Parties | ATLERv.STOLZ et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Bernalillo County; Milton J. Helmick, Judge.
Suit in aid of execution by Guadalupe Atler against Victor Stolz and others. From a judgment of dismissal, the plaintiff appeals.
Affirmed and remanded.
Statute requiring action involving interest in land to be brought in county in which land was situated held mandatory, and hence failure of defendants sought to be compelled to execute conveyances of land in another county to object to venue did not waive jurisdictional defect. Comp.St.1929, §§ 117-117, 147-101, subd. 4.
Robert Hoath La Follette, of Albuquerque, and Kenneth B. Speir, of Newton, Kan., for appellant.
Donald M. Bushnell, of Albuquerque, for appellee Stolz.J. S. Vaught, of Albuquerque, for appellee Scheer.
This is a suit in aid of execution. It was commenced in Bernalillo county and sought to reach lands in Valencia county. It was dismissed for lack of jurisdiction, and plaintiff has appealed.
Plaintiff, having obtained a judgment against defendant Stolz, sued out execution which was returned nulla bona. She claims that the title to the land in question has been manipulated in fraud of her rights as a creditor. She alleges that she conveyed the land in blank, with delivery to defendant Stolz, who paid the consideration and inserted the name of Enderlin as grantee, the intent and purpose being that the latter should hold in trust; that soon thereafter Enderlin reconveyed to Stolz, who fraudulently erased his own name as grantee, inserted the name of defendant Scheer, and recorded the deed. This is all alleged to have occurred more than four years prior to the recovery of plaintiff's judgment, but not to have been discovered until after the return of her execution.
Plaintiff prayed that defendants Scheer and Enderlin be compelled to make such conveyances as would place legal title of record in defendant Stolz. She further prayed that her judgment be declared a first, valid, and subsisting lien upon the land, as against the defendants, and prayed further that, after such conveyances had been made, the land be subjected to her judgment and sold for its satisfaction, and for general relief.
If the lands or any interest in them are “the object of (this) suit in whole or in part,” the venue was in Valencia county. 1929 Comp. St. § 147-101, Fourth. Appellant contends that her cause of action is for fraud, that available relief includes compulsion of the conveyances as prayed, mere relief in personam, and that the action is transitory and controlled as to venue by the first sub-section of the statute cited. Appellees contend that the action is an attempt to subject the land itself to a lien, and is in rem.
[1][2] Undoubtedly equity may, and often must, act in personam, but it may, and in a proper case should, act in rem. 1929 Comp. St. § 117-117; Catron v. Gallup Fire Brick Co., 34 N. M. 45, 277 P. 32. We find no error in the court's classification of this as a suit in rem, with venue in Valencia county. The most that appellant could demand was the establishment of her lien. Except for the...
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Pan American Petroleum Corporation v. Candelaria
...affected an interest in land had to be brought in the county where the land or any portion of it was situated. Later in Atler v. Stolz, 38 N.M. 529, 37 P.2d 243 (1934), the court held that the statute requiring an action affecting an interest in land to be brought in the county where the la......
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Heath v. Gray
...the venue statute, and the trial court in Sierra County, where the lands are not located, was without jurisdiction. Atler v. Stolz, 1934, 38 N.M. 529, 37 P.2d 243; Jemez Land Co. v. Garcia, 1910, 15 N.M. 316, 107 P. 683. Numerous other questions are presented and argued at length, and have ......
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Kalosha v. Novick
...It treated the statute as jurisdictional. Further reliance is placed by appellant upon Heath v. Gray, supra, and Atler v. Stolz, 38 N.M. 529, 37 P.2d 243 (1934). Each of those cases treats the venue statute with which we are concerned as being jurisdictional. We overrule them insofar as the......
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State ex rel. Bd. of County Com'rs of Harding County v. Board of County Com'rs of Quay County
...provisions of this act.' The appellants rely on our opinions in Jemez Land Co. v. Garcia, 1910, 15 N.M. 316, 107 P. 683; Atler v. Stolz, 1934, 38 N.M. 529, 37 P.2d 243, and Heath v. Gray, 1954, 58 N.M. 665, 274 P.2d 620, that actions involving title to real estate or an interest therein may......