Chronister v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 13 May 1963
• Docket Number: No. 7191,7191
• Parties: William Robert CHRONISTER, a minor, by his next friend, Bill Chronister, and Bill Chronister, individually, Plaintiffs-Appellants and Cross-Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee and Cross-Appellant.
• Court: New Mexico Supreme Court

Page 673

381 P.2d 673

72 N.M. 159

William Robert CHRONISTER, a minor, by his next friend, Bill Chronister, and Bill Chronister, individually Plaintiffs-Appellants and Cross-Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant-Appellee and Cross-Appellant.

No. 7191.

Supreme Court of New Mexico.

May 13, 1963.

Harris & Cathey, Roswell, for appellants and cross-appellees.

Brown & Brainerd, Roswell, for appellee and cross-appellant.

CHAVEZ, Justice.

This is the second time that this case comes before us. In our prior opinion found in 67 N.M. 170, 353 P.2d 1059, wherein the facts are stated, we held that triable issues of fact were presented and we remanded the case with direction to set aside the summary judgment and proceed with trial of all triable issues raised by garnishee's answer.

Upon remand, appellants filed a traverse to garnishee's answers of January 14, 1958, and February 20, 1959, in which appellants alleged that the garnishee was indebted to defendant Sparkman under the terms of an automobile insurance policy. Trial on the merits was had resulting in a judgment for garnishee. An appeal and a cross-appeal were granted to this court.

Appellants contend, under their point I, that the trial court lacked jurisdiction to hear anything other than evidence relating to the defense of lack of cooperation by Sparkman. This purported lack of jurisdiction is said to arise from the mandate of this court issued upon the remand of the case from the previous appeal.

The mandate conformed to the opinion of this court rendered on the first appeal, stating:

'NOW, THEREFORE, this cause is hereby remanded to you with direction to set aside the summary judgment heretofore entered and proceed with trial by jury, unless jury be waived, of all triable issues raised by garnishee's answer.'

The issues are those which were raised by garnishee's answers. The writs of garnishment employed follow the statutory form as set forth in Sec. 26-2-13, N.M.S.A., 1953 Comp., and require garnishee, upon whom they were served, to declare its indebtedness to Sparkman and to state whether or not and to what extent garnishee was holding any property or effects of Sparkman. In its answers, garnishee denied that it was indebted to or under liability to Sparkman, and alleged that it did not hold any property, money, credits, or effects of Sparkman. Therefore, the issue was raised as to whether garnishee was liable to or indebted to Sparkman. It placed the burden upon appellants to prove an indebtedness owing by garnishee to Sparkman. Perea v. Colorado National Bank of Texas, 6 N.M. 1, 27 P. 322. This being an issue raised by garnishee's answers, it was within the jurisdiction of the trial court as prescribed by our mandate.

Appellants cite State ex rel. Del Curto v. District Court of Fourth Judicial Dist., 51 N.M. 297, 183 P.2d 607, and Primus v. Clark, 58 N.M. 588, 273 P.2d 963, under this point. These cases are of no help to appellants. In State ex rel. Del Curto v. District Court of Fourth Judicial Dist., supra, the mandate directed the district court to vacate its judgment and dismiss Burguete's cause of action. In Primus v. Clark, supra, the cause was remanded for the determination of two specific issues. It is unquestioned that on remand the district court has only such jurisdiction as the opinion and mandate of this court confer. State ex rel. Del Curto v. District Court of Fourth Judicial Dist., supra. In the case before us, the cause was remanded with direction to set aside the summary judgment and proceed to trial on all triable issues raised by garnishee's answers.

Appellant's second point is that the accident was within the coverage of the insurance policy issued by garnishee to Sparkman. They base this on the complaints from which the default judgments arose, saying that, by permitting the default judgments to be entered against him, Sparkman admitted all the allegations in said complaints. This is true. Ealy v. McGahen, 37 N.M. 246, 21 P.2d 84. However, in Hollingsworth v. Hicks, 57 N.M. 336, 258 P.2d 724, we said that where the judgment is clear and unambiguous, neither the pleadings, nor the findings or verdict, may be resorted to to change its meaning. The default judgment entered against Sparkman on December 3, 1957, held Sparkman liable to appellants in the amount of $912.04 on the...