Fowler v. Cont'l Cas. Co.

Decision Date05 May 1912
Citation17 N.M. 188,124 P. 479
CourtNew Mexico Supreme Court


Syllabus by the Court.

A motion to set a default judgment aside, upon grounds other than jurisdictional, enters a general appearance, and validates the judgment as to all defects in the service of the summons.

When a party moves to set aside a default and judgment, upon the ground that the court had no jurisdiction over its person, because there has been no valid service of summons, it must occupy that ground exclusively, and keep out of court for all other purposes.

Appeal from District Court, Bernalillo County; before Justice Abbott.

Action by Charles F. Fowler against the Continental Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Where a party moves to set aside a default for want of jurisdiction, it must stand on that ground exclusively.

The defendant appeals from a judgment of the Bernalillo district court, rendered by default on June 22, 1911, and assigns as error the overruling of his motion to set aside the default, specifying particularly that the service of the summons was proved only by the admission of the Superintendent of Insurance, the statutory agent of the defendant; and also that the refusal of the court to set aside the default was an abuse of discretion.

Defendant is a nonresident insurance corporation, and issued a policy to plaintiff, agreeing to pay him a weekly indemnity against loss from accidental injury. In September, 1909, while the policy was fully in force, plaintiff suffered an accidental injury. Suit was commenced on the policy April 17, 1911, and service made on the territorial Superintendent of Insurance April 21st. This service is proved in the record only by the written acknowledgment of the Superintendent.

From the date suit was commenced until the default judgment was granted, the defendant was negotiating, first, with Mr. Frank W. Clancy and later with Mr. N. B. Field, both members of New Mexico bar, concerning employment of counsel.

After counsel for appellee were advised that Mr. Field had declined employment, they applied for a default on June 22, 1911, which was granted June 27, 1911. Appellant then moved to set aside the judgment, relying upon its alleged inability to employ an attorney, appearing generally, and without questioning the jurisdiction of the court. This motion was supported by affidavits, and was overruled by the court. Appellant then filed an additional motion to set aside the judgment, on the ground that the court was without jurisdiction over the defendant at the time judgment was rendered. This motion was also overruled, and defendant granted an appeal to this court.

E. W. Dobson, of Albuquerque, for appellant. Marron & Wood, of Albuquerque, for appellee.

HANNA, J. (after stating the facts as above).

Error is assigned as follows: (1) That the service was illegal, and the court acquired no jurisdiction over the defendant by reason thereof. This assignment challenges the proof of service for failure to show technical compliance with our statute governing service upon foreign insurance companies. It is not contended that no service was made, and does appear that the defendant company considered that it had been duly served with summons in this cause.

After the default judgment had been entered in this case, the defendant moved to set it aside, pleading grounds of justification for its default, and alleging, upon information and belief, that it had a meritorious defense to the cause of action, or the greater part of plaintiff's demands, and further moving for leave to plead to said complaint. No attack was made upon the jurisdiction of the court at this time; and it is contended by appellee that appellant, by its general appearance, waived the alleged defects in the proof of service of summons.

On the other hand, appellant contends that, the judgment being void for lack of jurisdiction, it could not waive the question of jurisdiction, or validate a void judgment by a general appearance in support of a motion to set the judgment aside.

[1] Appellant is not without authority to support its contention in this regard; nor are the authorities uniform upon the question. This court feels constrained to follow the rule enunciated by our territorial Supreme Court in the case of Sanatorium v. Vanston, 14 N. M. 436, 94 Pac. 945, from which opinion we quote as follows: “The appellant complains, as to the summons served upon her, that it was not properly indorsed, and that the complaint upon which it was issued was not signed by a duly...

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17 cases
  • Grieve v. Huber, 1573
    • United States
    • Wyoming Supreme Court
    • January 15, 1930
    ... ... the judgment. 4 C. J. 1365. Thus in Fowler v. Continental ... Casualty Co., 17 N.M. 188, 124 P. 479, the court said: ... "The ... ...
  • Chicago & Northwestern Railway Co. v. Sedgwick
    • United States
    • Iowa Supreme Court
    • April 7, 1927
    ... ... 604 (112 N.E. 266); ... Alderson v. White , 32 Wis. 308; Corbett v ... Physicians' Cas. Assn. , 135 Wis. 505 (115 N.W. 365); ... Bestor v. Inter-County Fair , 135 Wis. 339 (115 N.W ... 332 (45 N.W. 118); ... Molsberry v. Briggs , 176 Iowa 525, 156 N.W. 999; ... Fowler v. Continental Cas. Co. , 17 N.M. 188 (124 P ... 479); Montgomery v. Cameron & Co. , 49 Okla ... ...
  • Chi. & N. W. Ry. Co. v. Sedgwick
    • United States
    • Iowa Supreme Court
    • April 7, 1927
    ...been by appeal. Dikeman v. Struck, 76 Wis. 332, 45 N. W. 118;Molsberry v. Briggs, 176 Iowa, 525, 156 N. W. 999;Fowler v. Continental Casualty Co., 17 N. M. 188, 124 P. 479;Montgomery v. Cameron, 49 Okl. 179, 152 P. 398;Myers v. Chamness, 102 Okl. 131, 228 P. 988;Pierce v. Hamilton, 55 Colo.......
  • State Ex Rel. Nw. Colonization & Improvement Co. of Chihuahua v. Huller
    • United States
    • New Mexico Supreme Court
    • October 1, 1917
    ...must necessarily be held to have entered a general appearance in the cause. This court also held, in the case of Charles F. Fowler v. Con. Cas. Co., 17 N. M. 188, 124 Pac. 479, that: “When a party moves to set aside a default and judgment upon the ground that the court had no jurisdiction o......
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