Baca v. Anaya
| Citation | 89 P. 314,14 N.M. 20,1907 -NMSC- 005 |
| Parties | BACA et al. v. ANAYA et al. |
| Decision Date | 18 January 1907 |
| Court | Supreme Court of New Mexico |
Syllabus by the Court.
Upon the showing made by the appellant, the order of this court entered January 19, 1906, permitting an alias citation and extending for 90 days the time for service thereof, was within the powers of this court.
The methods of service of citation named in section 2 of chapter 114, p. 323, of the Acts of 1905 are not exclusive.
[Ed Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 2131.]
Where a large number of appellees were not represented by counsel in the court below and their present residence is unknown, so that they cannot be reached with citation, either personal or by mail, service of citation by publication is permissible under Comp. Laws, § 2964.
Where the record in the cause had been filed in this court, and all that remains to invest it with complete jurisdiction is the service of citation, the cause is one pending in this court and the notice for publication mentioned in the last headnote issues from this, and not from the district, court.
The provision of section 2, c. 114, p. 323, of the laws of 1905 as to the issuing of citation by the clerk of the district court, applies only to the ordinary citation, and not to any notice for publication issued in lieu thereof, this latter being issued out of this court where such cause is pending on appeal, and being signed by the clerk of this court.
The citation issued in this cause examined, and found sufficient as against the objections urged.
Action by Roman L. Baca and others against Santiago Anaya and others. Filomena Perea de Otero and others intervened. From the judgment, plaintiffs and interveners appeal. Heard on motion to quash the citation and dismiss the appeal. Overruled.
McMillen & Raynolds, for the motion.
Catron & Gortner, opposed.
The petition of Filomena Perea de Otero to be allowed to intervene herein was dismissed on November 3, 1904. A final decree confirming the report of the commissioners who made partition between the original parties to the suit was thereafter entered on January 21, 1905. An appeal was taken from these proceedings by the intervener on April 20, 1905, and the cause, with printed transcript of record, was docketed in this court on July 7, 1905. On January 2, 1906, a motion was made to quash appellant's citation and service upon the ground, among others, that only a small portion of the original defendants had been cited. This motion was confessed and the citation and service quashed on January 12, 1906. Thereupon affidavits were filed by the intervener and her counsel showing that the defects in the proceedings resulting in the quashing of the citation were not chargeable to her fault, but were due to causes which she was unable to avoid or anticipate. In these affidavits she further showed that in the suit below there were hundreds of parties, many of whom did not appear by counsel, and whose whereabouts were unknown and could not be discovered. Upon this showing she prayed that she be granted an extension of time to serve citation upon such defendants, and that such service be by publication. Upon this showing this court, on January 19, 1906, made an order extending the time for service and return on such citation 90 days, with leave to the intervener "to sue out or obtain such citation as the law may justify." Pursuant to this order, notice of the appeal and citation to appear was secured by plaintiffs from the clerk of this court and also from the clerk of the trial court, and the first was published once a week for four consecutive weeks in a newspaper of general circulation at Santa Fé, and the other for a like time in a similar paper in Bernalillo county. Proof of the publication being filed in this court, a motion to quash the citation and service attempted thereby and to dismiss the appeal has been filed by Joshua S. Raynolds and Alonzo B. McMillen. The motion proceeded generally upon three grounds: First, that there was no power in this court to make the order heretofore mentioned extending the time for service of citation; second, that service of citation from this court by publication was and is unauthorized by law; and, third, that the citation in this case is defective in form.
As to the first of these contentions, we are of opinion that the order giving the appellant further time to sue out and serve citation was within the powers of this court. While under chapter 114, p. 323, of the laws of 1905, all appeals and citations are made returnable into this court 90 days after such appeals are taken, and while by rule 5 citation is to be served at least 5 days before the return day, these do not militate against the power of this court to relieve against accidents and excusable mistakes in proper cases. Such power is, as indicated in Bank v. Inman, 133 Ind. 289, 32 N.E. 885, and Elliott on Appellate Procedure, § 183, an "inherent power" possessed by "all courts of general superior jurisdiction." There is abundant precedent for this action in the federal courts. In the Supreme Court of the United States (as in this territory before the act of 1905) appeals were originally made returnable to the next succeeding term, and it was held in Villabolos v. United States, 6 How. 81, 12 L.Ed. 352, and other early cases, that unless citation was served before the first day of the term the appeal would be dismissed. By Dayton v. Lash, 94 U.S. 112, 24 L.Ed. 33, however, it was distinctly held, distinguishing these earlier cases, that such an omission did not avoid the appeal, but rather furnished a case where the court might "grant summary relief by imposing such terms upon the appellants as under the circumstances may be legal and proper." And in that case the court says: "As this appeal was returnable to the present term, and some attempt was made to serve the citation, which the appellants may have supposed was actually completed, we order that unless the appellants cause a new citation, returnable on the first Monday in February next, to be issued and served upon the appellee before that date, the appeal be dismissed." The holding in this case was approved and followed in Railroad Company v. Blair, 100 U.S. 661, 25 L.Ed. 587, where appellants were given until the following February to sue out and serve citation upon the appellees. By the rules of the Supreme Court, announced January 7, 1884 (108 U.S. 577, 3 S.Ct. vii), the return day of citations was changed, and thereafter fixed in certain cases for the first day of the term, and in others for the third Monday of the term, and it was made compulsory to serve the citation before the return day; but notwithstanding this last provision it has been uniformly held that the court might in its discretion permit a citation to be issued and served at any time before the end of the next ensuing term. Dodge v. Knowles, 114 U.S. 430, 5 S.Ct. 1197, 29 L.Ed. 296; Hewitt v. Filbert, 116 U.S. 142, 6 S.Ct. 319, 29 L.Ed. 581; Richardson v. Green, 130 U.S. 114, 9 S.Ct. 443, 32 L.Ed. 872; Knickerbocker Life Ins. Co. v. Pendleton, 115 U.S. 339, 6 S.Ct. 74, 29 L.Ed. 432; Jacobs v. George, 150 U.S. 415, 14 S.Ct. 159, 37 L.Ed. 1127.
On January 26, 1891 (137 U.S. 710, 11 S.Ct. iii), the Supreme Court adopted the rule now in existence, making the return day for appeals respectively 30 and 60 days (according to distance) from the date of citation, and requiring citation to be served before the return day; and yet under this condition, almost identical with that created by our act of 1905, it has never, so far as we are aware, been questioned that the court had the discretion to grant "summary relief" in the proper case by extending the time for serving citations. Likewise, in the United States Circuit Court of Appeals, where citations are made returnable not exceeding 60 days after their date, and...
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