Baca v. Catron.

• Decision Date: 21 November 1917
• Docket Number: No. 1881.,1881.
• Citation: 24 N.M. 242,173 P. 862
• Parties: BACA et al.v.CATRON.
• Court: New Mexico Supreme Court

24 N.M. 242

173 P. 862

BACA et al.

v.CATRON.

No. 1881.

Supreme Court of New Mexico.

Nov. 21, 1917.On Motion for Rehearing, July 2, 1918.

Syllabus by the Court.

A formal party, or a person who makes himself a party by his own conduct during the litigation, is not entitled to intervene under section 4382, Code 1915, for the purpose of subsequently litigating rights which he failed to assert in the main proceeding.

The owner of a segregated tract, in possession, cannot be proceeded against as an unknown owner, and is not made a party by service of process by publication against unknown owners in a partition suit.

A person not named in the complaint nor served with summons, if he has an interest in the matter in litigation, makes himself a party to the cause by acts and conduct on his part amounting to a general appearance.

The record on appeal must show all of the record of the trial court necessary for a consideration of the questions presented for review, and this duty devolves upon the appellant or plaintiff in error.

The trial court will take judicial notice of the record of a case on trial before it in determining whether a person claiming the right to intervene under the statute is a party to the main cause or not, and the court will perform this duty without any request from the parties.

On Motion for Rehearing.

Additional Syllabus by Editorial Staff.

Where it appears from the complaint in a partition suit and the proceedings thereunder that the parties were tenants in common when instituting the suit, it is immaterial that the complaint shows that at some time prior to the suit the property was owned in severalty.

Appeal from District Court, Sandoval County; Mechem, Judge.

Suit for partition by Trinidad Baca and others against the Unknown Heirs of Jacinto Palaez and others, in which C. C. Catron, by leave of court, filed a petition of intervention and answer. From an order striking the petition in intervention and answer, intervener appeals. Affirmed.

Where it appears from the complaint in a partition suit and the proceedings thereunder that the parties were tenants in common when instituting the suit, it is immaterial that the complaint shows that at some time prior to the suit the property was owned in severalty.

Reed Holloman and C. C. Catron, both of Santa Fé, for appellant.

A. B. McMillen, of Albuquerque, for appellee.

PARKER, J.

The appellant, with leave of the court, filed a petition of intervention and answer in the case of Baca v. Unknown Heirs of Jacinto Palaez et al., the same being a suit to partition the La Majada grant. Prior to the filing of said petition of intervention and answer by appellant this court had dismissed the appeal of certain appellees in the partition suit. 20 N. M. 1, 145 Pac. 945. The petition of intervention set up facts tending to show that the appellant was the owner in fee of a segregated tract of land within the grant, and that he and his predecessors in title had been in possession thereof for more than 50 years. Certain plaintiffs and defendants represented by A. B. McMillen, Esq., filed in said cause what has been consistently called a motion to dismiss the petition of intervention. This so-called motion was based upon the ground that the report of the referee and the decree approving the same, filed in the partition suit, concluded the appellant upon all questions raised by him in his petition of intervention. Subsequent to the filing of the motion an affidavit supporting the motion was filed. It stated facts tending to show that the appellant was a party defendant in the partition suit, litigated his rights in the premises, and had full opportunity to prove whatever right he possessed in any of the lands in said grant. After argument of counsel the trial court struck the petition of intervention and answer of appellant from the files, and it is from that action that this appeal has been perfected.

To avoid confusion and possible misunderstanding we shall state the substance of the contentions of the parties to this appeal. The appellant contends that: (1) The defense of res adjudicata cannot be raised by motion to strike, but must be pleaded in bar, where the facts and the nature of the prior adjudication do not appear upon the face of the pleadings; (2) that the motion contains no grounds authorized by statute for the filing of a motion to strike; (3) that the plea of res adjudicata cannot be founded upon an interlocutory judgment; (4) that section 4382, Code 1915, authorized the filing of the petition of intervention and answer; (5) that appellant claims title to segregated lands within the grant, and, not having been served with process not brought into court by virtue of the service by publication upon unknown owners or heirs, appellant having been in actual possession of said land, he was authorized to intervene and have determined his right to such segregated land; (6) that the ruling of the trial court deprived him of certain rights of property guaranteed under the Constitution of the United States and under the Constitution of the state; and (7) that, after leave had been granted to file the petition, an attack thereon could have been made only by demurrer. The appellant also contends that the motion to strike raised a question upon which he was entitled to a jury trial.

The brief of appellees is devoted to the following propositions: (1) That the action of the trial court will be presumed to be correct, unless the contrary is clearly shown by record; (2) that the matters stated in the motion and affidavit must be considered to be true in the absence of anything in the record disputing same; (3) that no proper exceptions were taken by appellant to the report of the referee; (4) that appellant's failure to assert title to his segregated lands in the partition suit precludes him from setting it up now; (5) that the procedure adopted by appellees to determine the appellant's right to litigate the issue presented by the petition was correct; (6) that the trial court will take judicial notice of its record and the proceedings in a case before it; and (7) that appellees did not plead nor attempt to raise the defense of res adjudicata. Other portions of said brief disclose that the trial court concluded that a party to a cause had no right to intervene therein and set up rights which he could have asserted in the first instance but did not assert.

[1] 1. Section 4382, Code 1915, provides:

“During the pendency of such suit or proceeding any person claiming to be interested in the premises may appear and answer the complaint and assert his right by way of intervention, whether such interest be derived or claimed under the common source of title or otherwise, and the court shall decide upon their rights as though they had been made parties in the first instance.”

The statute itself is sufficient authority for the statement that the right of intervention is given to one claiming to be interested in the premises who is not a party to the main suit and was not intended to operate in favor of a party thereto. The statute was referred to in Baca et al. v. Anaya et al., 14 N. M. 382, 387, 94 Pac. 1017, and Montoya v. Unknown Heirs et al., 16 N. M. 349, 386, 120 Pac. 676. In the Baca-Anaya Case the court said:

“This language is plain, and prima facie needs no construction.”

A person made a party defendant to a partition suit is afforded ample opportunity to defend and assert his right by way of answer, and there is no occasion for such a party to plead by way of intervention. In other words, the statute applies to those claiming an interest in the premises who are not parties to the cause, but who may take advantage of the statute and become parties and entitled to litigate their rights by filing a petition of intervention.

[2] 2. The inquiry, therefore, is, Was appellant a formal party to the partition suit? The record on this appeal discloses that he was not. The formal parties were the unknown heirs of certain designated persons, unknown owners, and unknown claimants of interest adverse to plaintiffs. The appellant, the owner of a segregated tract of land within the grant and in possession thereof, was not affected by such suit if not a party thereto, and cannot be held to have been made a party under the designation of unknown owners and claimants. Rodriguez et al. v. La Cueva Ranch Co., 17 N. M. 246, 134 Pac. 228. From a consideration of the question thus far it is apparent that appellant, not being, or having become, a formal party to the partition suit, was entitled to intervene and litigate his rights in the premises, unless he otherwise became a party.

[3] 3. If a person, not made a formal party to a cause, enters upon the trial of the issues made by the formal parties thereto and litigates his rights therein and is decreed relief, in whole or in part, he cannot be heard to assert that he may further litigate his rights by way of petition of intervention, providing the court had jurisdiction of the subject-matter in the first instance. In such cases the voluntary act of the party in contesting with others the issues in the case and asserting his rights and receiving benefits under the decree operates as effectually against him as though he were made a formal party in the first instance and assisted in making the issues by a formal answer to the complaint. In 2 Enc. P. & P. 643, it is said:

“A person who is not named in the complaint nor served with summons, if he has an interest in the matter in litigation, makes himself a party by a general appearance.”

In Thompson v. Schuyler et al., 2 Gilman (Ill.) 271, an action in ejectment against Brewer, it was held that Thompson became a party to the cause by appearing and defending the same at every step until final judgment was rendered. In Denver & Rio Grande R. Co. v. Loveland, 16 Colo. App. 146, 64 Pac. 381, it was held that the trial court erred in substituting the Denver & Rio...