Hamond v. Lawson.Mckinley v. Same.
| Decision Date | 09 September 1919 |
| Docket Number | Nos. 2267, 2268.,s. 2267, 2268. |
| Citation | 184 P. 216,25 N.M. 415 |
| Court | New Mexico Supreme Court |
| Parties | GEREN & HAMONDv.LAWSON.McKINLEYv.SAME. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
On appeal from the justice court to the district court, the garnishee against whom judgment has been rendered, where it appears from the transcript of the justice that no summons was issued nor service obtained, either personally, by publication, or otherwise, against the defendant and principal debtor, and that he did not appear and waive service, a district court, on motion, properly adjudged the proceedings to be null and void, and dismissed the case, as “garnishment” is an ancillary proceeding, and not a new or separate suit.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Garnishment.]
The statutory and constitutional provisions, that on appeals from justices of the peace to the district courts the case appealed shall be tried de novo, mean that such cases shall be so tried when the justice court had jurisdiction. If the justice court had no jurisdiction of the case, the district court, on appeal from the justice court, acquires none by such appeal, and it cannot be tried de novo.
Error to District Court, Otero County; Medler, Judge.
Separate actions by Geren & Hamond and by E. D. McKinley against one Demier, with garnishment against J. L. Lawson. Judgments against garnishee in justice court, and he appealed to district court, wherein his motion for a dismissal of cases was granted, and plaintiff in each case brings error. Judgment dismissing appeals affirmed.
The statutory and constitutional provisions, that on appeals from justices of the peace to the district courts the case appealed shall be tried de novo, mean that such cases shall be tried when the justice court had jurisdiction. If the justice court had no jurisdiction of the case, the district court, on appeal from the justice court, acquires none by such appeal, and it cannot be tried de novo.
L. R. York and Leo L. Heisel, both of Alamogordo, for plaintiffs in error.
F. C. Wilson and D. K. Sadler, both of Santa Fé, for defendant in error.
The facts in these two cases are identical, except as to the amounts involved. Plaintiffs in error brought garnishment proceedings against defendant in error, Lawson, and obtained a judgment against him in the justice court. He appealed to the district court, and, upon his motion for a dismissal of the cases in the district court being granted, plaintiffs in error appealed to this court. No process was issued or served upon Demier, the defendant below. He did not enter his appearance, waive service, nor was he made a party by publication or otherwise.
[1] We hold that the district court rightly dismissed the cases. Garnishment is an ancillary remedy to the main...
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McCann v. McCann
...only such jurisdiction as the lower tribunal possessed. See Valencia Water Co. v. Neilson, 27 N.M. 29, 192 P. 510; Geren & Hamond v. Lawson, 25 N.M. 415, 184 P. 216; Pointer v. Lewis, 25 N.M. 260, 181 P. 428; Wood Garage v. Jasper, 41 N.M. 289, 67 P.2d 1000, 115 A.L.R. 496. See, also, David......
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Durham v. Rasco.
...except perhaps to dismiss the cause and render judgment for costs. Pointer v. Lewis, 25 N. M. 260, 181 Pac. 428; Geren et al. v. Lawson, 25 N. M. 415, 184 Pac. 216. The appellee does not controvert these general principles, but contends that he abandoned his mortgage in the justice court so......
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State v. Gonzales.
...N.M. 314, 137 P. 597; Rogers v. Kemp Lumber Co., 18 N.M. 300, 137 P. 586, 51 L.R.A.,N.S., 594; Pointer v. Lewis, supra; Geren & Hammond v. Lawson, 25 N.M. 415, 184 P. 216; Lea County State Bank v. McCaskey Register Co., 39 N.M. 454, 49 P.2d 577. [5] If we gave no further latitude to appella......
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Galindo v. Western States Collection Co., 486
...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 acce......