Galindo v. Western States Collection Co., 486

• Decision Date: 30 October 1970
• Docket Number: No. 486,486
• Citation: 477 P.2d 325,82 N.M. 149,1970 NMCA 118
• Parties: Martin T. GALINDO and Delores M. Galindo, his wife, Plaintiffs- Appellees, v. WESTERN STATES COLLECTION COMPANY, Inc., and E. M. Stoll and John L. Martin, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 325

477 P.2d 325

82 N.M. 149

Martin T. GALINDO and Delores M. Galindo, his wife, Plaintiffs- Appellees, v. WESTERN STATES COLLECTION COMPANY, Inc., and E. M. Stoll and John L. Martin, Defendants-Appellants.

No. 486.

Court of Appeals of New Mexico.

Oct. 30, 1970.

Larry D. Beall, James R. Toulouse, Toulouse, Moore & Walters, Albuquerque, John J. Wilkinson, Alamogordo, for defendants-appellants

Don Hancock, Alamogordo, for plaintiffs-appellees.

OPINION

WOOD, Judge.

In this suit for wrongful garnishment, compensatory damages were awarded against all defendants and punitive damages against E. M. Stoll and Western States Collection Company, Inc. (both these defendants are hereinafter referred to as Stoll). The appeals raises issues as to: (1) the liability of Justice of the Peace Martin; (2) the amount of the compensatory damages; (3) liability of Stoll for punitive damages; and (4) the amount of the punitive damages.

Sometime in the spring of 1968 Stoll received, for collection, the account of Mr. and Mrs. Galindo with Aldens of Chicago. Upon being contacted by Stoll, plaintiffs requested '* * * an itemized statement of the account with explanations as to why they owned the account, * * *' This information was not furnished. Instead, on August 9, 1968, Aldens assigned the account to Stoll. On August 21, 1968, Stoll wrote to plaintiffs threatening suit if the account was not paid immediately.

On September 7, 1968, Stoll brought suit against the plaintiffs in Bernalillo County, New Mexico. Stoll prepared and filed an application for a writ of garnishment. Justice of the Peace Martin prepared a civil summons, a bond which was executed by Stoll, and a writ of garnishment.

The summons was 'served' on the Galindos by posting on a bulletin board at the Bernalillo County Courthouse. The writ of garnishment was served at an office of Mr. Galindo's employer in Bernalillo County. As a consequence of service of the writ, Mr. Galindo did not receive two paychecks on the dates they normally would have been received.

When he did not receive his second paycheck, Mr. Galindo inquired of his immediate supervisor and learned on September 26, 1968, for the first time, that his wages had been garnisheed. He consulted an attorney on September 27th. The attorney contacted Stoll on the same date. As a result of this contact, Stoll executed a release of the garnishment on September 27th. The only evidence is that the release was delivered to the Justice of the Peace on the same date. However, Galindo did not receive the two paychecks, dated September 18th and September 26th, until October 4th.

At all material times Stoll knew that plaintiffs were not residents of Bernalillo County, but were residents of Otero County.

Liability of the Justice of the Peace.

Our general statute on garnishments, Chapter 26, Article 2, N.M.S.A.1953 (now repealed--see Laws 1969, ch. 139), permitted garnishment before judgment was rendered against the debtor. Section 26--2--35, N.M.S.A.1953 (now repealed--see Laws 1968, ch. 62, § 171), made the article applicable to proceedings in Justice of the Peace courts. However, the jurisdiction of the Justice of the Peace was limited to the county in which he was elected. See § 36--2--8, N.M.S.A.1953 (Repl. Vol. 6)--now repealed. The judgment against Justice of the Peace Martin was based on his knowledge or lack of knowledge concerning his jurisdiction.

The trial court found that Justice of the Peace Martin: (1) wrongfully accepted the case '* * * without knowing whether he had any jurisdiction over the person of the plaintiffs, * * *'; (2) wrongfully accepted the case '* * * without knowing as to whether he had any jurisdiction over the subject matter of the garnishment * * *'; and (3) knew '* * * that the plaintiffs would only be served by posting of the Summons on the bulletin board in the Courthouse in Bernalillo County, New Mexico.'

The record fully supports the findings that Martin had no knowledge of any jurisdictional facts giving his court jurisdiction when he accepted the suit and issued the writ of garnishment. The inferences in the record also support the finding that the only 'service' on plaintiffs would be posting on a bulletin board at the courthouse in Bernalillo County and that Martin knew it. However, it does not follow that Martin's knowledge and lack of knowledge was wrongful so as to make him liable for wrongful garnishment.

We agree with the trial court's comment from the bench that there is nothing showing that jurisdiction was acquired over the Galindos in the Justice of the Peace suit. Since jurisdiction was not acquired over the Galindos by any of the methods authorized in the garnishment statute, the garnishment proceedings, which were ancillary to the suit against the Galindos, were void. Geren v. Lawson, 25 N.M. 415, 184 P. 216 (1919).

However, there is nothing in the garnishment statute requiring that jurisdictional facts be known to the court before accepting the suit or before issuing the writ of garnishment. Martin was not required to know that the Galindos would be properly served, pursuant to the statute before accepting the suit and issuing the writ. The writ was to issue if proper grounds were stated in the application and a proper bond was supplied. See § 26--2--3, N.M.S.A.1953. Martin is not to be held liable for his lack of knowledge of jurisdictional facts at the time suit was instituted and the writ of garnishment issued.

Of more concern is Martin's knowledge that the only 'service' would be the posting at the courthouse. Even if Martin did not know that the Galindos were not residents of Bernalillo County, he did know that the only effort to give the Galindos notice of the suit would be by posting. He is charged with the knowledge that this posting would not be proper service in this suit. Section 26--2--34, N.M.S.A.1953; and generally, § 21--1--1(4), N.M.S.A.1953. This knowledge is not a sufficient basis for holding Martin liable.

Judicial officers are not liable for erroneously exercising their judicial powers. They are, however, liable for acting wholly in excess of their jurisdiction. The distinction is between an erroneous exercise of jurisdiction and a usurpation of authority, that is, acting without any jurisdiction. Edwards v. Wiley, 70 N.M. 400, 374 P.2d 284 (1962); Vickrey v. Dunivan, 59 N.M. 90, 279 P.2d 853 (1955); compare Torres v. Glasgow,80 N.M. 412, 456 P.2d 886 (Ct.App.1969). This rule applies to Justices of the Peace. Edwards v. Wiley, supra.

Here, with knowledge that the Galindos would not be properly served, we assume that Martin acted erroneously in issuing the writ of garnishment. However, he was not acting wholly without subject matter jurisdiction. Ryan v. Scoggin, 245 F.2d 54 (10th Cir. 1957). Rather, he was acting within his authority in issuing the writ because all requirements for issuing the writ were before him. His knowledge that there would not be service did not make his act 'wholly in excess of jurisdiction.' An appearance, even without proper service, would have kept the writ of garnishment from being void, and given Martin authority to render judgment against the Galindos. Edwards v. Wiley, supra.

The trial court's conclusion that Justice of the Peace Martin acted wrongfully in connection with the garnishment proceedings is not supported by the facts found by the trial court. Compare Ryan v. Scoggin, supra; Edwards v. Wiley, supra; State ex rel. Heron v. District Court of First Jud. Dist., etc., 46 N.M. 296, 128 P.2d 454 (1942). The judgment against Martin is reversed.

Amount of the compensatory damages.

The trial court awarded compensatory damages, but only in favor of Mr. Galindo. Stoll does not question his liability for compensatory damages in this appeal. He does attack the amount of these damages, which is $525.52. Of this amount, $25.52 is undisputed special damage. Stoll's claim is that $500.00 of the award lacks evidentiary support. The $500.00 amount was awarded for '* * * mental anguish, worry, and embarrassment.'

There is evidence that Galindo: was concerned about losing his job as a result of the garnishment; couldn't concentrate and made mistakes at work; had difficulty in eating and sleeping; and was nervous. There is evidence that the store manager was 'after' Galindo because he didn't pay his bills.

Galindo had not been concerned about not getting his paycheck due September 18th, attributing the failure to get the check to a mistake. The evidence is that none of the items listed in the preceding paragraph occurred before Galindo learned of the garnishment on September 26th. Since Galindo saw his attorney on September 27th and a release of the garnishment was executed that day, Stoll asserts that Galindo '* * * could have been disturbed about the garnishment only on the evening of the 26th. * * *' (Stoll's emphasis). Stoll contends there is no evidence of mental anguish, worry or embarrassment on that evening. Stoll claims that the $500.00 award is based on Galindo's difficulties with his wife about the alleged unpaid bill with Aldens, and these difficulties occurred prior to his knowledge of the garnishment. These contentions are not based on the record before us.

The record shows that Galindo's concern about the garnishment and the resulting effects began when Galindo learned of the garnishment on September 26th and continued at least until he received the wrongfully garnisheed paychecks on October 4th.

The evidence of a week's concern over possible loss of his job, of having his employer 'after' him, of nervousness, of inability to concentrate, and of difficulty in eating and sleeping supports the trial court's award of $500.00 for these items of damage resulting from the wrongful garnishment instituted by Stoll. There is nothing indicating passion, prejudice, partiality, sympathy, undue influence or a mistaken measure of damages in the award of compensatory damages. See Schrib v....