Eaton v. Cooke
| Decision Date | 15 June 1964 |
| Docket Number | No. 7427,7427 |
| Citation | 1964 NMSC 137,74 N.M. 301,393 P.2d 329 |
| Parties | Paul W. EATON, Jr., Administrator of the Estate of Cora Lee Montgomery, Deceased, and Mack Montgomery, Plaintiffs-Appellants, v. C. C. COOKE, Defendant-Appellee. |
| Court | New Mexico Supreme Court |
Bean & Snead, Wm. W. Osborn, Roswell, J. Lee Cathey, Carlsbad, for appellants.
C. C. Chase, Jr., Alamogordo, for appellee.
This is an appeal from an order dated March 28, 1963, vacating a default judgment entered January 11, 1957. The main question is whether jurisdiction was acquired of the person of the defendant Cooke.
The complaint, filed September 27, 1956, charges that Earl Lacy, Jr., an agent of the defendant Cooke, operated a motor vehicle in a negligent manner thereby causing the death of Cora Lee Montgomery and peronal injuries to the plaintiff, Mack Montgomery. Summons was issued the same day and directed to 'C. C. Cooke, Jockey Club, Ruidoso, New Maxico.' On the back of the summons appear the following:
'(Return when service is made personally on defendants by other than Sheriff.)
'State of New Mexico,
County of Lincoln} ss.
R. W. Driggers being duly sworn, upon his oath, says, I am over the age of eighteen years, I served the within summons by delivering a copy thereof, with copy of complaint attached, in the county aforesaid, in person to C. C. Cooke on Nov. 16 1956 9:10 A.M.
Fees: None
Subscribed and sworn to before me this 16 day of Nov. 1956.
/s/ Herbert Smith (Notarial Seal)
My Commission (illegible) 1960'
'(Return when service is made on defendants by other than Sheriff by serving someone residing at usual place of abode of defendant who is then absent.)
'State of New Mexico,
County of Lincoln} ss.
_____ being duly sworn, upon his oath, says, I am over the age of eighteen years, I served the within summons _____ by delivering a copy thereof, with copy of complaint attached, in the county aforesaid to C. C. Cooke a person over fifteen years of age, residing at the usual place of abode of defendant _____, who at the time of such service was absent therefrom.
Fees: /s/ Herbert Smith (Notarial Seal)
Subscribed and sworn to before me this 16 day of November, 1956.
My Commission expires (illegible) 1960'
A certificate of default was issued, following which default judgment was taken January 11, 1957 against the defendant in amount of $33,661.20. Subsequently, on January 25, 1963, the defendant, upon learning that the plaintiffs were attempting to collect the judgment, entered his appearance and moved to vacate the judgment, restrain execution, and to quash the service of summons on the ground of the absence of service of process, and further asserting the defense that he was not the owner of the vehicle involved in the collision.
The trial court found that the defendant had never been served with process and that the alleged returns, being so defective, raised no legal presumption of service; that the judgment was void, and that the defendant was not barred by laches or inexcusable neglect in failing sooner to take action to vacate the judgment. An order was entered accordingly and the cause was set for trial on the merits. The correctness of the ruling is here for review on appeal.
The sufficiency of the evidence to sustain the findings is challenged. Turning to the evidence, the defendant testified unequivocally that he was never served with summons personally or otherwise. The witness, R. W. Driggers, a state police officer assigned to that area, testified that he was well acquainted with the defendant in 1956; that which he made the notations 'Lincoln,' 'R. W. Driggers,' 'C. C. Cooke,' 'Nov. 16, 1956,' '9:10 A.M.' appearing upon the back of the summons, he had no recollection about the matter and to the best of his knowledge he neither served the defendant with summons personally nor by leaving summons with ayone at the Jockey Club. He substantiated his testimony by producing his activity report, a daily report required of all state police officers, reflecting various duties performed by them. The report for the month of November, 1956, with regard to service of process upon the defendant was negative. The certificate of default, dated December 18, 1956, tends strongly to impeach the alleged returns. It shows that the return was made by the Sheriff of Lincoln County, the portion with regard to service by private party being stricken therefrom. But the plaintiffs make no claim that summons was served by the sheriff. Incidentally, the witness Smith had misplaced or lost his notary record and had no independent recollection about the matter. He admitted, however, that his signatures were on the returns.
We deem the evidence substantial and under a well-recognized rule the findings will not be disturbed on appeal. Sanchez v. Garcia, 72 N.M. 406, 384 P.2d 681; Watson v. Western Casualty & Surety Company, 72 N.M. 250, 382 P.2d 723. It follows that the court was without jurisdiction to enter the judgment and the judgment is void. Compare Bourgeious v. Santa Fe Trail Stages, 43 N.M. 453. 95 P.2d 204 where admittedly summons was served but the original summons was not attached to the return.
Appellants make the further point that the motion to vacate was untimely filed. Sections 21-1-1(55)(c) and 21-1-1(60)(b), N.M.S.A. 1953, being Rules 55(c) and 60(b), our Rules of Civil Procedure, provide relief from judgments, and the latter provides that motions therefor shall be made within a reasonable time. What constitutes 'reasonable time' under the rules depends upon the circumstances of the particular case. See 49 C.J.S. Judgments Sec. 337b(5), (7), where the cases are collected. But where the judgment...
To continue reading
Request your trial