Bourgeious v. Santa Fe Trail Stages Inc.

• Decision Date: 16 October 1939
• Docket Number: No. 4448.,4448.
• Citation: 95 P.2d 204,43 N.M. 453
• Parties: BOURGEIOUSv.SANTA FE TRAIL STAGES, Inc.
• Court: New Mexico Supreme Court

43 N.M. 453

95 P.2d 204

BOURGEIOUS

v.SANTA FE TRAIL STAGES, Inc.

No. 4448.

Supreme Court of New Mexico.

Oct. 16, 1939.

Appeal from District Court, Santa Fe County; David Chavez, Jr., Judge.

Action by H. C. Bourgeious against the Santa Fe Trail Stages, Incorporated. A default judgment was entered and execution was issued. From an order overruling an amended motion to recall the execution and set aside the judgment, the defendant appeals.

Affirmed.

The statutory requirement that summons be returned with proofs of service is primarily for the benefit of the court, its purpose being to apprise the court that due service has been had upon the defendant. Comp.St.1929, § 105-306.

Wilson & Watson, of Santa Fe, for appellant.

Mann & Tonkin, of Albuquerque, for appellee.

ZINN, Justice.

On September 20, 1938, the District Court of Santa Fe County entered its order overruling appellant's motion to recall execution and set aside a final judgment theretofore entered against it by default on February 24, 1938. From this order this appeal is prosecuted.

The facts revolving around the legal issues raised on appeal are as follows:

Appellee's complaint was filed December 28, 1937, and summons issued on the same day. On December 30, 1937, there was filed in the cause the affidavit of Rosana Lujan to the effect that she had served a true copy of the complaint and the Summons in the cause on Francis C. Wilson, the appellant's statutory agent. On February 15, 1938, the Clerk of the District Court filed in the cause a certificate of non-appearance. This certificate of non-appearance recites as a fact “*** that it appears from the return made by the sheriff that the said defendant was personally served with process in the county of Santa Fe, on the 30th day of December 1937.” There was thereupon entered by the court and filed on February 24, 1938, a default decree against appellant. On July 7, 1938, execution was issued and on July 27, 1938 the motion was filed by appellant to recall the execution and set aside the default judgment. An amended motion of like import was filed August 5, 1938, which is the motion that was overruled and from which order this appeal followed. To the amended motion to recall the execution there is attached an affidavit of merit by J. W. Blood, secretary and general counsel of the appellant. This affidavit recites that the appellant had no notice or knowledge of the case until after execution had issued; that the summons had not been transmitted by the statutory agent to the appellant.

To the original motion of the appellant to recall the execution there is attached an affidavit by Eve Wientge, secretary to the statutory agent of appellant. There is no denial of service of summons and complaint upon the statutory agent in that affidavit.

The affidavit of service on file in the cause shows that Rosana Lujan, a citizen of the State of New Mexico and over the age of eighteen years, disinterested in the cause, on December 28, 1937, served upon Francis C. Wilson, the statutory agent of the appellant in this state, a true copy of the complaint and summons in this cause. This has never been denied by the statutory agent himself.

From all of the above it is certain to our mind, as it probably was to the trial court, that the affidavit of Rosana Lujan speaks the truth and that service of the complaint and summons in said cause was duly had upon the statutory agent of the appellant as provided by 1929 Comp.St., Sec. 32-196, as amended by L.1935, Ch. 113.

However, the return made by Rosana Lujan did not have attached thereto the original summons as required by 1929 Comp.St., Sec. 105-306.

In the order of the court from which this appeal is prosecuted, there is a recital therein that the court consulted the files and records in the cause. From this recital we must presume that the trial court was satisfied that a proper summons had been issued.

The question presented by the appellant in this case thus narrows down to whether the failure of the person who made the service and the return, but failed to return the original summons as required by 1929 Comp.St., Sec. 105-306, constitutes such an irregularity that the appellant was entitled to have the execution recalled and the judgment vacated pursuant to 1929 Comp. St., Sec. 105-846.

The appellant presents a double-barreled argument. First, that the failure to return the summons with the proof of service is such an irregularity that goes to the jurisdiction of the court. Second, even if it be such an irregularity that does not go to the jurisdiction of the court, the court abused its discretion in not recalling its execution and setting the judgment aside as an irregularly entered judgment.

Answering the first proposition we can say unhesitatingly that the failure to return the original summons with the proof of service is not vital to the jurisdiction of the court over the person of the defendant. If the defendant has been properly served with a summons, the jurisdiction of the court over the person then and there attaches as effectively as does the jurisdiction of the court over the subject matter when a proper complaint is filed with the court.

Counsel for appellant and appellee in their briefs admit that there is a dearth of authority upon the point as urged by appellant. However, ordinary reasoning convinces us of the soundness of the conclusion we reach. The purpose of the summons is to give notice to the defendant. Until such notice has been given to the defendant, the court has no jurisdiction to proceed to judgment against the defendant even though the court may have jurisdiction of the subject matter. The summons is the process by which the defendant is summoned to court. The return on the other hand is merely the evidence by which the court is informed that the defendant has been given that indispensable notice to appear in court, without which the court is powerless to proceed. It is not, however, the return which gives the court jurisdiction.

In 21 R.C.L. 1315, § 62, under “Process” it is said: “It is not the return, however, but the service of the writ, that gives jurisdiction. The return is merely evidence by which the court is informed that the defendant has been served.”

In the syllabus in the case of Kahn v. Mercantile Town Mutual Insurance Co., 228 Mo. 585, 128 S.W. 995, 137 Am.St.Rep. 665, we find: “Process.-It is the Service of a Writ and Petition upon the defendant, not the return, that gives the court jurisdiction over his person. The return is merely evidence by which the court is informed that the defendant has been served. (p. 671.)”

Also in Cunningham v. Spokane Hydraulic Mining Co., 20 Wash. 450, 55 P. 756, 757, 72 Am.St.Rep. 113: “The jurisdictional fact existed that the proper party had been served, and the announcement of that fact was not the essential thing in question. As was said by the supreme court of California in Herman v. Santee , 37 P. 509 ,-where a summons had been properly served, but the proof of service was defective, and the court, after judgment, allowed an amended affidavit of service to be filed nunc pro tunc as of the date of the judgment,-quoting Pico v. Sunol, 6 Cal. [294], 295: “‘Jurisdiction of the person of defendant is acquired by the service of process, and dates from such service, and not from the return.”’ And Drake v. Duvenick, 45 Cal. [455], 463, where it was said: “‘The fact of service was material, and from the time service was...