Hanratty v. Middle Rio Grande Conservancy Dist.

• Citation: 82 N.M. 275,1970 NMSC 157,480 P.2d 165
• Decision Date: 14 December 1970
• Docket Number: No. 9039,9039
• Parties: William J. HANRATTY, Plaintiff-Appellee, v. MIDDLE RIO GRANDE CONSERVANCY DISTRICT, Defendant-Appellee, and Andres G. Vigil, a/k/a Andres Vigil, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 165

480 P.2d 165

82 N.M. 275

William J. HANRATTY, Plaintiff-Appellee, v. MIDDLE RIO GRANDE CONSERVANCY DISTRICT, Defendant-Appellee, and Andres G. Vigil, a/k/a Andres Vigil, Defendant-Appellant.

No. 9039.

Supreme Court of New Mexico.

Dec. 14, 1970.

Rehearing Denied Jan. 25, 1971.

Second Rehearing Denied Feb. 17, 1971.

Milton S. Seligman, Albuquerque, for appellant

Ussery, Burciaga & Parrish, Albuquerque, for Hanratty.

Hannett, Hannett, Cornish & Barnhart, Albuquerque, for Middle Rio Grande Conservancy District.

OPINION

COMPTON, Chief Justice.

This is an appeal from a summary judgment. The Middle Rio Grande Conservancy District filed Cause No. 3723 in Sandoval County to foreclose its lien for delinquent tax assessments against the land involved in this suit. Substituted service by publication was obtained upon appellant Vigil, the then owner of the property, and, upon his failure to answer, default judgment was entered in favor of the Conservancy District in 1962. The Conservancy District sold the property approximately four years later to appellee Hanratty.

Subsequently this action was filed by appellee Hanratty to quiet title to the property. Appellant Vigil answered and filed a cross claim against Hanratty and appellee, Middle Rio Grande Conservancy District, alleging that the default judgment entered against him in Cause No. 3723 was invalid because he was never served with process. Appellee Hanratty moved for and was granted summary judgment quieting title in himself and Vigil has appealed.

The decisive question is whether the appellant by counterclaim in a separate proceeding may attack the prior judgment entered in Cause No. 3723. The trial court found the attack to be a collateral attack and dismissed appellant's answer and cross claim.

We think the ruling of the court was correct. Appellant's attack on the judgment is not made in the same action as the foreclosure suit but rather it is an attempt to impeach the judgment by matters dehors the record in an entirely different action.

The question presented is conclusively settled in this jurisdiction. Arthur v. Garcia, 78 N.M. 381, 431 P.2d 759; Lucus v. Ruckman, 59 N.M. 504, 287 P.2d 68. Compare Barela v. Lopez, 76 N.M. 632, 417 P.2d 441; McDonald v. Padilla, 53 N.M. 116, 202 P.2d 970.

In Arthur v. Garcia, supra, we said:

'In the instant case, there is clearly an attempt, in a separate action, to impeach by matters dehors the record and, accordingly, this is a collateral attack.'

In Lucus v. Ruckman, supra, we quoted with approval 34 C.J. 520, § 827 (49 C.J.S. Judgments § 408, p. 805) as follows:

"A direct attack on a judgment is an attempt to avoid or correct it in some manner provided by law and in a proceeding instituted for that very purpose, in the...