Grant v. Booker.

Decision Date15 September 1926
Docket NumberNo. 2982.,2982.
Citation31 N.M. 639,249 P. 1013
PartiesGRANT et al.v.BOOKER.
CourtNew Mexico Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

Nonresidence of plaintiff not ground for quashing writ of attachment.

Action on motion to vacate judgment, under Code 1915, § 4227, is discretionary, and reviewable only for abuse.

Showing on motion to vacate judgment, under Code 1915, § 4227, held insufficient to warrant reversal for abuse of discretion in overruling motion.

Invoking trial court's discretion to vacate judgment, under Code 1915, § 4227, is a general appearance, and waives objections to jurisdiction over the person.

Questions not decided in trial court not available on review.

Error to District Court, San Juan County; Holloman, Judge.

Action by J. C. Booker against A. V. Grant and another. Judgment for plaintiff, and defendants bring error. Affirmed and remanded.

Showing on motion to vacate judgment, under Code 1915, § 4227, held insufficient to warrant reversal for abuse of discretion in overruling motion.

E. S. Whitehead, of Aztec, for plaintiffs in error.

Geo. F. Bruington, of Aztec, and A. M. Edwards, of Santa Fé, for defendant in error.

WATSON, J.

In an attachment suit, defendants' motion to quash the writ and dismiss the proceeding having been overruled, and they having failed to plead within the time limited in the order, judgment was rendered for the plaintiff. After the overruling of a motion to vacate the judgment, writ of error was sued out.

[1] One of the grounds of the motion to quash, and one of the contentions here, is that, since the plaintiff is a citizen of Colorado, the remedy by attachment is not available to him. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, is cited, but does not seem to be in point. At 6 C. J. 39, it is said that “it is generally immaterial that the attaching creditor is a nonresident.” Our attention has not been called to any statutory provision or principle of law warranting us in saying that the courts of this state are not open to nonresidents who may have occasion to invoke the remedy of attachment.

[2][3] The ground of error most seriously urged in the overruling of the motion to vacate the judgment. Rendered out of term time, upon default, it was within the power of the district court to set it aside upon good cause shown. Code 1915, § 4227. Such power was discretionary. Lasswell v. Kitt, 11 N. M. 459, 70 P. 561. The only question on review is whether the refusal was an abuse of discretion. The only showing made in support of the motion was that a copy of the order overruling the motion to quash, and requiring defendants to plead within ten days, mailed to one of the defendants, did not reach him until after the ten days had expired, and after the judgment had been rendered by default. The record before us shows no other material fact. Nor does it show for what reason the trial judge denied the motion. It is not shown that the affiant did not have notice or knowledge of the overruling of his motion and his limited time for pleading. It is not shown that his codefendant did not have such knowledge or notice or that he did not have even a copy of the order. There is no affidavit of merits, no tender of pleading, and no...

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3 cases
  • State v. NUTTALL, 5016
    • United States
    • New Mexico Supreme Court
    • June 11, 1947
    ...22 N.M. 502, 165 P. 213; Irick v. Elkins, 38 N.M. 113, 28 P.2d 657. Blacklock v. Fox, 25 N.M. 391, 183 P. 402; Grant v. Booker, 31 N.M. 639, 249 P. 1013; State v. Board of Trustees, 32 N.M. 182, 253 P. 22; State v. Layton, 32 N.M. 188, 252 P. 997; State v. Knowles, 32 N.M. 189, 252 P. 987; ......
  • Kerr v. Sw. Fluorite Co.
    • United States
    • New Mexico Supreme Court
    • December 13, 1930
    ...rendered out of term time on motion filed within 60 days, held to be a discretionary power, reviewable only for abuse. Grant v. Booker, 31 N. M. 639, 249 P. 1013. We agree with appellant that there is no showing of irregularity in the proceedings, as the term is defined in Coulter v. Board ......
  • Kerr v. Southwest Fluorite Co.
    • United States
    • New Mexico Supreme Court
    • December 13, 1930
    ... ... term time on motion filed within 60 days, held to be a ... discretionary power, reviewable only for abuse. Grant v ... Booker, 31 N.M. 639, 249 P. 1013. We agree with ... appellant that there is no showing of irregularity in the ... proceedings, as the term ... ...

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