Hammond v. Dist. Court of Eighth Judicial Dist.

• Decision Date: 06 August 1924
• Docket Number: No. 2974.,2974.
• Citation: 30 N.M. 130,228 P. 758
• Parties: HAMMOND ET AL.v.DISTRICT COURT OF EIGHTH JUDICIAL DIST. OF NEW MEXICO ET AL.
• Court: New Mexico Supreme Court

30 N.M. 130

228 P. 758

HAMMOND ET AL.

v.DISTRICT COURT OF EIGHTH JUDICIAL DIST. OF NEW MEXICO ET AL.

No. 2974.

Supreme Court of New Mexico.

Aug. 6, 1924.

Syllabus by the Court.

The summons prescribed by section 2214, Code 1915, to be served in a proceeding supplemental to execution, must be returnable not less than 10 days from its issuance and service.

Such a summons which is returnable in a less period of time is void, and confers no jurisdiction over the person of the defendant.

A proceeding supplemental to execution is auxiliary to and a part of the original action in the sense that it takes the same number on the docket, but it is essentially a new and independent action in the sense that it involves the determination of new and different issues, all of which are foreign to those involved in the original case.

Jurisdiction over the person of the defendant is not retained for the purpose of a hearing supplemental to execution by reason of the original process, but a new summons issued in terms of the statute is necessary to confer such jurisdiction.

Any action on the part of a defendant, except to object to the jurisdiction over his person, which recognizes the case as in court, amounts to a general appearance, and gives the same jurisdiction as though process had been regularly served in the manner and form, and for the length of time prescribed by law.

The expression “which recognizes the case as in court” means that it is recognized as pending with jurisdiction of the subject-matter and of the parties.

A writ of prohibition is not a writ of right, but instead is one of sound judicial discretion that is cautiously issued or withheld according to the circumstances of each particular case. It is never issued unless it is plain that the court, officer, or person against whom it is sought is about to exercise some judicial or quasi judicial power that is clearly unauthorized by law, and will result in injury for which there is no adequate remedy at law.

The writ will not be necessarily denied because of the remedy by appeal where it appears that such remedy is not adequate.

Original proceeding by Herbert J. Hammond, Sr., and others, against the District Court of the Eighth Judicial District of the State of New Mexico, within and for the County of Union, and Thomas D. Leib, as Judge thereof, for writ of prohibition. Writ granted.

A writ of prohibition is not a writ of right, but instead is one of sound judicial discretion that is cautiously issued or withheld according to the circumstances of each particular case. It is never issued unless it is plain that the court, officer, or person against whom it is sought is about to exercise some judicial or quasi judicial power that is clearly unauthorized by law, and will result in injury for which there is no adequate remedy at law.

C. J. Roberts, of Santa Fé, O. O. Askren, of East Las Vegas, and D. K. Sadler, of Raton, for petitioners.

Crampton & Darden, of Raton, and Hugh B. Woodward and O. P. Easterwood, both of Clayton, for respondents.

BRATTON, J.

On May 27, 1924, D. W. Priestley, as receiver of the Union Trust & Savings Bank of Clayton, recovered a judgment in the district court of Union county against H. J. Hammond, Herbert J. Hammond, Jr., and Fulgencio C. De Baca. Thereafter and on the same day, an execution was issued, delivered to the sheriff of Union county, and by him returned nulla bona, and an affidavit filed seeking the issuance of a summons as provided in section 2214, Code 1915, requiring the judgment debtors, H. J. Hammond and Herbert J. Hammond, Jr., to appear before Hon. Thos. D. Leib, judge of said court, and submit themselves to an examination regarding any property they owned that could be applied to the satisfaction of such judgment, and to abide the orders of the court made with reference thereto. Upon this affidavit being filed, a summons was issued, dated May 27, 1924, commanding the two judgment debtors referred to to appear before the court on the following day at 9 o'clock a. m., and submit to such examination. A motion to quash this summons was interposed, presenting many questions, among them being that it did not comply with the provisions of the statute referred to, in this: The statute requires the return day of such process to be not less than 10 days after its issuance and service, while the process in question was made returnable in less than 24 hours. This motion was overruled.

On May 28th a subpœna duces tecum was issued and served, requiring the defendants Hammond to appear at 10 o'clock on that day with certain enumerated writings and books. The hearing was had, during which a petition was filed by the plaintiff in said cause, seeking to have each and all of the petitioners herein adjudged in contempt of court, and punished therefor. As the acts constituting such contempt, it was specifically pleaded that, after the summons and subpœna duces tecum had been served, the petitioners entered into a conspiracy and confederation to evade and violate the orders of the court by removing and transporting certain papers, instruments, documents, and property of the defendants Hammond from the jurisdiction of the court. An order was entered in the cause requiring each and all of the petitioners herein to appear before said court on May 30th, then and there to show cause why they should not be held and adjudged in contempt. The hearing upon the contempt proceeding was not held on that day because of the required absence of the judge, but was postponed to be held at a later date upon 5 days' notice to counsel for petitioners, and they were granted bond to appear at such time as the court might fix. Thereafter the petitioners H. J. Hammond, Herbert J. Hammond, Jr., Mattie L. Hammond, and Corneil Hammond, instituted this proceeding to secure a writ of prohibition against the respondent Thos. D. Leib, judge of said court, from proceeding further to punish them for such alleged contempt. We granted an alternative writ, to which the respondent has made return, and the pleadings necessitate the determination of several questions.

[1] 1. It is strenuously insisted by the petitioners that the summons in question was defective, and consequently gave the court no jurisdiction over their person, because it was returnable at a shorter time than that prescribed by law. Section 2214, Code 1915, authorizes the proceedings supplemental to execution and prescribes the procedure to be followed, including the summons to be issued. It is in this language:

“In all cases where any person shall have a valid and subsisting judgment in any district court against any person, upon which judgment execution has been issued and returned not satisfied, the owner of said judgment shall have the right to file his affidavit in the court where said judgment is of record, setting forth the facts regarding the rendition of said judgment and the return of said execution. On the filing of said affidavit, the clerk of the district court, if said affidavit is filed in the district court, shall issue summons thereon commanding said judgment defendant to appear within ten days and submit to an examination regarding any property that he may have and shall abide the order of the court regarding the applying of any property that he may have on said judgment in satisfaction thereof. When said affidavit is filed said proceedings may be referred to a referee on the petition of either party, and the referee appointed to hear the same shall proceed to hear said matter and report the evidence taken therein, to the court. The court trying and determining said proceedings shall have the right to enforce the appearance of the said judgment defendant and all necessary witnesses and to enforce all orders made therein by attachment. And in case any judgment defendant shall fail or refuse to appear or answer all lawful and proper questions put to him in said proceedings or shall fail or refuse to comply with the order of the court made in said proceedings said party shall be liable to a fine and imprisonment for contempt in such amount or for such time as the court may determine.”

This controversy revolves around the construction to be placed upon this language found in the statute, “commanding the defendant to appear within 10 days and submit to an examination,” etc. It is urged that such language means that the summons shall be returnable not less than 10 days after its issuance and service, and with this contention we are in accord. In order to arrive at the correct construction of a statute, the language used, the purpose in view, and the object sought to be accomplished by the Legislature must always be kept in mind. With these rules in view, we think it is clearly intended by the statute that, after the affidavit is filed, a summons shall issue, which shall inform the judgment debtor of the...