Barela v. Lopez
Decision Date | 22 August 1966 |
Docket Number | No. 7822,7822 |
Citation | 417 P.2d 441,76 N.M. 632,1966 NMSC 163 |
Parties | Fedelina BARELA, Plaintiff-Appellant, v. Carpio LOPEZ, Defendant-Appellee, Atlantic Insurance Company, Garnishee-Appellee. |
Court | New Mexico Supreme Court |
This case has been before this court in Barela v. De Baca, 68 N.M. 104, 359 P.2d 138, and in Barela v. Lopez, 73 N.M. 121, 385 P.2d 975, and has now been appealed for the third time by Fedelina Barela from an order vacating a judgment entered October 29, 1959 in her favor against Carpio Lopez.
Fedelina Barela obtained a default judgment against Carpio Lopez for damages sustained while a passenger in an automobile owned by Willie C. De Baca and driven by Carpio Lopez. Thereafter, appellant sought to garnish Atlantic Insurance Company, asserting that Lopez was an insured person under the terms of an insurance policy issued by Atlantic to De Baca. Atlantic filed a motion under Rules 55(c) and 60(b)(4), Rules of Civil Procedure (§§ 21--1--1(55)(c) and (60)(b)(4), N.M.S.A.1953), seeking to vacate the judgment against Carpio Lopez for lack of jurisdiction over the person of the defendant Lopez on the ground that he was neither served with process in the original action nor with the amended complaint. After hearing the testimony of witnesses, the court made the following findings:
'4. * * *
'7. * * *.'
Based upon the facts thus found, the court concluded that no valid service of process was ever made upon Carpio Lopez; that the court was without jurisdiction of his person; and that the judgment against Lopez was void.
While the court's findings are not attacked as lacking in substantial support, the record discloses that the officer who executed the return of service of the original summons testified that Lopez was a prisoner in the state penitentiary; that he did not deliver a copy of the summons to him, but instead delivered it to one Tom Trujillo, records custodian at the penitentiary. The summons was found in the penitentiary files--not in the prisoner's personal file. The findings are in fact supported by substantial evidence and support the conclusion that the defendant was not served with process. Incidentally, the record discloses an order dismissing the original complaint with leave to amend but fails to show service of the amended complaint. Absent a showing of service upon him, it follows that the court was without jurisdiction to enter the judgment against Carpio Lopez and that it was void. Eaton v. Cooke, 74 N.M. 301, 393 P.2d 329.
Actually, the attack here is not as to the sufficiency of the evidence to support the findings on the motion to vacate the judgment, but plaintiff argues that the motion constitutes a collateral attack upon it and asserts that absent a showing of lack of jurisdiction affirmatively appearing on the face of the judgment or the record itself, the presumption in support of the court's jurisdiction is conclusive. This appeal accordingly turns on whether the motion to vacate the judgment is a direct or a collateral attack. We, therefore, turn at once to the definitions approved by this court of direct and collateral attacks on judgments.
In Lucas v. Ruckman, 59 N.M. 504, 287 P.2d 68, a direct attack on a judgment was defined in the language of 34 C.J. 520, § 827 (49 C.J.S. Judgments § 408, p. 805) as:
"A direct attack on a judgment is an attempt to avoid or correct it in some manner provided by law and in a proceeding instituted for that very purpose, in the same action and in the same court; * * *."
Lucas likewise defined and distinguished a collateral attack...
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