Ealy v. Mcgahen.

• Decision Date: 05 April 1933
• Docket Number: No. 3729.,3729.
• Citation: 21 P.2d 84,37 N.M. 246
• Parties: EALYv.McGAHEN.
• Court: New Mexico Supreme Court

37 N.M. 246

21 P.2d 84

EALY

v.McGAHEN.

No. 3729.

Supreme Court of New Mexico.

April 5, 1933.

Appeal from District Court, Curry County; Patton, Judge.

Suit by John C. Ealy against Nora Clark McGahen. From an order vacating final judgment for plaintiff, plaintiff appeals.

Reversed, with instructions.

Final judgments are conclusive as to claim or demand in controversy as between parties and those in privity with them, as to every matter which was offered to sustain or defeat claim or demand and any other admissible matter which might have been offered for that purpose.

Waiter W. Mayes, of Clovis, for appellant.

Otto Smith and Richard E. Manson, both of Clovis, for appellee.

ZINN, Justice.

The appellant, on July 25, 1930, brought suit in the district court of Curry county, N. M., to foreclose a lien for building material furnished to one C. E. Houston, and used in the erection and repair of a dwelling located on lot 2 and the north half of lot 3 in block 10 in West Clovis addition to Clovis, Curry county, N. M., amounting to $700.67.

The record shows that on the 29th day of March, 1930, the plaintiff filed in the office of the county clerk of Curry county a notice of lien, which was duly recorded, but which notice, however, described the real estate as lot 2, block 11, West Clovis addition, rather than lot 2 and the north half of lot 3, block 10, and that, upon discovery of the mistaken description, the plaintiff corrected the notice of lien, and refiled the same for recording in the office of the county clerk of Curry county on the 2d day of May, 1930, which corrected notice, without being reacknowledged, was duly recorded. During the month of April, 1930, the said C. E. Houston conveyed said real estate to the appellee. Both Houston and appellee were defendants below, and both were personally served with summons and copy of the complaint on July 26, 1930.

On August 28, 1930, a certificate of default was filed as to the appellee, and on October 3, 1930, a final decree was entered against her for the full amount prayed for, granting the appellant a lien upon the premises and decreeing foreclosure under said lien. On October 3, 1930, the plaintiff dismissed as to Houston. On December 2, 1930, a motion was filed by the appellee to set aside the default judgment, and on said date the court entered an order setting aside the final judgment and decree aforesaid. On December 9, 1930, the appellant filed a motion to set aside the order entered on December 2, 1930, vacating the judgment, for the reason that no affidavit of merit was filed with the motion to vacate the decree and judgment, and no showing of diligence or lawful reason for failure to answer, and that no answer was tendered with the motion, or any showing to justify the setting aside of the default judgment. On the 22d day of December, 1930, the court acted on said motion to set aside the order entered on December 2, 1930, vacating the judgment, and reinstated the original judgment and decree. The special commissioner theretofore appointed by the court to conduct the sale under foreclosure proceeded with the sale, and on December 22, 1930, sold the premises in question to the appellant, which sale was approved by the court on February 3, 1931.

On April 23, 1931, the appellee filed a motion to vacate the final judgment and decree for the reason that the changed and refiled notice had not been reacknowledged before the same was refiled and recorded, and for the further reason that the claim of lien included some nonlienable and duplicate items in the sum of $217.52, and interest in the sum of $25, all of which items were included in the judgment, and therefore constituted a fraud upon the appellee sufficient to authorize the setting aside of the judgment for irregularities.

On July 22, 1931, the motion of the appellee to set aside and vacate the final decree and judgment for irregularities came on to be heard before the court, and the court ruled that the failure to reacknowledge or reverify the corrected notice of lien was such an irregularity as to necessitate vacating the final decree and judgment.

The court further found that the item of interest, being in the sum of $25, was not chargeable and could not be recovered in the lien, and was included in the judgment though the same was a nonlienable item, and that such inclusion might be assumed by the court to be willful and intentional, and was also such an irregularity to entitle the appellee to have said judgment set aside, and did so order.

From which order vacating the final judgment, the appellant is here praying for a reversal.

[1] The appellant's contention that a default judgment cannot be vacated after the expiration of sixty days for any cause is without merit.

This question has been specifically decided in the case of Ortega v. Vigil, 22 N. M. 18, 158 P. 487, 488, where it was contended that section 4227, Code of 1915, which is now section 105-843 of the New Mexico Statutes Annotated, Compilation of 1929, was exclusive so far as default judgments are concerned.

This court said: “We cannot agree with appellant's contention. The object of the Legislature in the enactment of section 4227, supra, was to provide for the setting aside of default judgments ‘upon good cause shown,’ and this ‘good cause’ may consist of many facts and circumstances which would not amount to an ‘irregularity.’ Section 4230 made ample provision for the setting aside of judgments for irregularities, but affords no relief from a default judgment where good cause may be shown for its vacation, other than an irregularity. Hence we conclude that a default judgment may be set aside for irregularity, on motion filed at any time within one year after its rendition.” Ortega v. Vigil, 22 N. M. 18, page 20, 158 P. 487.

Section 105-846 of the New Mexico Statutes Annotated, 1929 Compilation, which is as follows: “Judgments may be set aside for irregularity, on motion filed at any time within one year after the rendition thereof”-plainly applies to all judgments, whether entered on default or otherwise, and provides that judgments may be set aside for irregularity at any time within one year after rendition. Weaver v. Weaver, 16 N. M. 98, at page 106, 113 P. 599; Fullen v. Fullen, 21 N. M. 212, at page 233, 153 P. 294.

If the trial court was justified in setting aside the judgment in question on the ground of irregularity as contemplated by section 105-846, supra, we are not concerned with the question of whether or not the original judgment was a default judgment. Northcutt v. King et al., 23 N. M. 515, at page 517, 169 P. 473.

The only question of merit presented for our consideration in this case is whether or not, pursuant to section 105-846, supra, the court on July 22, 1931, acted properly in vacating its original judgment and decree of foreclosure, for the reason that the materialman's lien was not reacknowledged before the same was refiled and re-recorded after the description was corrected and because of the inclusion of interest in the sum of $25, being a nonlienable item in said lien, which nonlienable item was included in the judgment.

The court in this case had jurisdiction of the parties and the subject-matter. The appellant's complaint is in due and proper form.

The appellee had actual knowledge of the pendency of the suit, having been personally served with summons and complaint, but permitted judgment to go against her without pleading to the complaint. The judgment was regularly rendered.

Apparently the judgment could not be vacated under section 105-801, 1929 Compilation, which restored to district courts, during the period of 30 days, the control which they formerly had over their judgments during term time.

The motion to vacate was interposed more than 60 days after entry of judgment, and was therefore not within the provisions of section 105-843, authorizing vacating for good cause a default judgment rendered out of term time on motion filed within 60 days.

This case does not come within the ruling of this court in the case of Kerr v. Southwest Fluorite Co. et al., 35 N. M. 232, 294 P. 324, where the court held that statutes limiting time for opening or vacating final judgments do not apply to cases of extrinsic fraud or collusion, inasmuch as the court below did not vacate the judgment because of fraud or make any finding of fraud. The court did say that he might assume that the item of interest was willfully and intentionally inserted in the notice of lien, but he did not so assume, and held that the insertion of the interest item was irregular and as such would vitiate the judgment.

[2] The court apparently held that the appellant was not entitled to interest. There certainly was no fraud practiced in the matter, and it was simply an error of law upon the part of the court in granting judgment for this item of interest in the first instance, and we do not think that a motion to vacate the judgment is proper proceeding for the purpose of correcting an error of law. Section 105-846, supra, does not include an “error of law,” merely irregularities.

[3] The power of the court to vacate judgments on account of irregularities within section 105-846, supra, on motion, is not intended to be used as a means for the court to review or revise its own final judgments to correct errors of law into which it may have fallen. Where an action or suit is regularly commenced and prosecuted, judgment regularly entered, even though by default, the defendant cannot thereafter on motion vacate such judgment on the ground of the existence of a complete defense to the action, which defense was available to the defendant before the entry of the judgment.

Trial courts cannot be permitted within the year referred to in section 105-846, supra, to change, correct, review, and revise final judgments first in behalf of one and then the other party to the suit in order to correct errors of law or fact in the...