Baca v. Wilcox.

• Citation: 68 P. 922,11 N.M. 346
• Parties: DE BACA et al.v.WILCOX.
• Decision Date: 25 April 1902
• Court: Supreme Court of New Mexico

11 N.M. 346

68 P. 922

DE BACA et al.

v.WILCOX.

Supreme Court of the Territory of New Mexico.

April 25, 1902.

Syllabus by the Court.

1. Writs of scire facias, so far, at least, as the revival of judgments are concerned, were abolished in this territory by the adoption of the Code of Civil Procedure.

2. When a lower court has no jurisdiction to enter a judgment, the question of jurisdiction may be raised for the first time in an appellate court.

Error to district court, Valencia county; before Justice J. W. Crumpacker.

Scire facias by A. G. Wilcox against Ramona L. De Baca and others. From the judgment reviving the judgment, defendants bring error. Reversed.

Writs of scire facias, so far at least as the revival of judgments are concerned, were abolished in this Territory by the adoption of the code of civil procedure.

On September 1, 1893, a judgment was rendered in the district court of Valencia county in favor of A. G. Wilcox, plaintiff, against Roman A. Baca, defendant, for $372.27, and costs. Execution was sued out, to which return was made January 10, 1894. Alias execution was sued out May 8, 1894, to which return was made December 15, 1894. Nothing further was done until April 20, 1900, when writs of scire facias were issued to the sheriffs of Santa Fé and Valencia counties, seeking to revive the judgment of September 1, 1893, for its full amount and interest and costs. The scire facias proceedings were brought, according to the recitals in the writ, against the plaintiffs in error as the successors, administrators, and heirs of said original defendant, Roman A. Baca, stating their succession as a matter of fact. Service was made, as appears by the record, certificate of nonappearance was issued by the clerk of the district court on April 20, 1900, and on June 1, 1900, the judgment was revived by the court against the plaintiffs in error herein, they not appearing, for the amount of the original judgment, interest, and costs, and execution was awarded against all of the property which the said plaintiff was entitled to have subjected to his execution during the lifetime of the deceased, Roman A. Baca. To this judgment, writ of error was sued out.

Catron & Gortner, for plaintiffs in error.

McMillan & Raynolds, for defendant in error.

MILLS, C. J.

(after stating the facts). But two points are involved in the decision of this case, to wit: (1) Will the writ of scire facias lie to revive a judgment since the enactment of the Code of Civil Procedure in the year 1897? and (2) if the writ does not lie, are we estopped from considering the points assigned as error, because plaintiffs in error allowed a judgment to go against them by default in the lower court, and reserved no exceptions on which to base a writ of error?

1. Previous to the passage of our practice act or Code of Civil Procedure (section 2685 Comp. Laws 1897), writs of scire facias were freely issued by the courts of this territory in appropriate cases. Subsection 1 of the Code provides that “there shall be in this territory but one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which shall be denominated a civil action,” etc. By subsection 175 of the Code, as amended by section 6, c. 75, Sess. Laws 1899, it is provided that the Code “shall not affect proceedings for habeas corpus, mandamus, prohibition, quo warranto, or other proceedings, to wit, *** or actions in replevin, ejectment or proceedings by attachment, except so far as the same prescribes the time of service and return of process.” Writs of scire facias are not mentioned as exempted from its operation. Defendant in error contends that a scire facias to revive a judgment is not affected by the Code, it not being an original, but a judicial, writ, founded on some matter of record; and that it is only the continuation of an action,-a step leading to the execution already obtained, and enforcing the original demand for which the action was brought. This court, however, held in the case of Browne & Manazanares Co. v. Chavez, 9 N. M. 316, 54 Pac. 234, that a scire facias proceeding was an action. In that case the court says: “The proceedings in this case show all the characteristics of an action at law. The record shows that a præcipe was issued for the writ, and the writ of scire facias was issued, which is declared to be the equivalent of a declaration. The writ was returnable as other writs are. The defendant was ordered to show cause. Pleasant demurrer were filed as in other cases. A judgment overruling the demurrer and dismissing the cause was entered, and plaintiffs in error have the scire facias proceedings, not the original action, in this court, seeking a review and reversal; and we see no reason why such proceedings should not be considered an action within the meaning of our statute.” A...