Heron v. Gaylor., 4812.

• Decision Date: 07 February 1945
• Docket Number: No. 4812.,4812.
• Parties: HERONv.GAYLOR.
• Court: New Mexico Supreme Court

49 N.M. 62

157 P.2d 239

HERON

v.GAYLOR.

No. 4812.

Supreme Court of New Mexico.

Feb. 7, 1945.Rehearing Denied April 3, 1945.

Appeal from District Court, Rio Arriba County; Albert R. Kool, Judge.

Proceeding in forcible entry and detainer by Kenneth Heron against D. H. Gaylor. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Any irregularity in bringing into district court appeal from justice court judgment for plaintiff in forcible entry and detainer suit and obtaining jurisdiction of plaintiff's person was waived by plaintiff's entry of general appearance and motion to dismiss appeal because of alleged imperfections in additional appeal bond required and approved by district court. 1941 Comp. §§ 38-1801, 38-1819.

[157 P.2d 240 , 49 N.M. 63]

Kenneth A. Heron, of Chama, pro se.

Reed Holloman, of Santa Fe, for appellee.

MABRY, Justice.

This is a proceeding in forcible entry and detainer. Plaintiff-appellant Heron (hereinafter to be referred to as plaintiff) secured judgment against defendant-appellee (hereinafter to be referred to as defendant) Gaylor in the Justice of the Peace Court of Precinct No. 17, Rio Arriba County. Defendant appealed to the District Court of the First Judicial District where upon final hearing he secured a dismissal of the suit. From the judgment dismissing plaintiff appeals.

The assignments of error are argued under three points, to-wit:

Point I: The writ staying proceedings in the Justice of the Peace Court was absolutely void for the reason that it was not issued by the statutory authority, and as a consequence there was no appeal to the District Court.

Point II: The original appeal bond of the defendant was not such a ‘bond’ as is required by the statutes in cases of appeals from the Justice of the Peace Court to the District Court, was absolutely void as an appeal bond, and did not effectuate the appeal.

Point III: The District Court erred in making and entering its order of May 11, 1942, in which the Court overruled, denied and dismissed plaintiff's motion for dismissal of appeal and for judgment, which said motion was filed in the cause on December 29, 1939.

The complaint charged that on the 25th day of July, 1938, plaintiff was lawfully possessed of certain real property in said precinct and county and that on said date the defendant unlawfully entered into and upon the said land against the will and without the consent of the plaintiff, and refused to vacate after notice by plaintiff; that plaintiff was damaged to date of filing of complaint in the sum of $175 and in the further sum of $2 per day during the period the premises were so unlawfully detained by defendant. The trial court, on hearing upon the merits, found against the contention of plaintiff, specifically finding that defendant was not in fact in possession of the property ‘at the time of the commencement of this suit, or at any time thereafter,’ and dismissed the suit at the cost of plaintiff.

Plaintiff, upon this appeal, does not attack the substantiality of the evidence to support the findings in this respect. His attack is based upon the wholly technical grounds above set forth. This case is a continuation of the litigation and involves at least some of the questions raised in a former proceeding. State ex rel Heron v. District Court, etc., 46 N.M. 296, 128 P.2d 454, to which reference is here made.

We first note the question raised under Point I. Can it be said that plaintiff appeared generally and submitted himself to the jurisdiction of the district court and has thus waived any question which might otherwise have been raised as to whether the district court had jurisdiction to entertain the appeal because of the manner or method of bringing up the proceedings for trial de novo in the district court? Plaintiff, in his reply brief, states that in view of this court's decision upon the previous proceeding above noticed he ‘has not questioned the jurisdiction of the district court in the instant case’; that he here proposes only to assert the right to rely upon the ‘errors and irregularities committed by the District Court.’ Under this point the right of one Iola Yashvin, acting as clerk of the district court for Rio Arriba County, or as deputy clerk, under appointment of the District Judge of the First Judicial District, as distinguished from an appointment by the county clerk, is challenged as one of the principal irregularities. The acts on her part here involved were all prior to the effective date of Chapter 150 of the Laws of 1939, authorizing the district courts to appoint their own clerks. If this act had been in force and effect at the time, the question could not have arisen. It was Mrs. Yashvin who directed the writ to the Justice of the Peace requiring that the papers in the proceedings be sent up to the district court and who approved the bond required by 1941 Comp. Sec. 38-1819. Whether the justice of the peace acted upon such citation, or, after reflecting upon the statutory penalty that might follow in case he wrongfully refused to allow an appeal, allowed the appeal of his own motion and sent up the transcript upon the assumption that the bond tendered was sufficient, the record does not disclose. The transcript was, in fact, sent up and the appeal docketed within the time allowed the justice of the peace to act of his own motion. Numerous motions to dismiss were filed by plaintiff early in the proceedings but such motions were not acted upon for more than a year after they were filed. And when action was taken by the court overruling such motions it appears that plaintiff had theretofore, and on September 21, 1939, interposed a new motion for an additional appeal bond and security, and in such motion he expressly recognized that an appeal had been taken and was then pending, and, contends defendant, he thus waived any right he has to further urge error as to the proceedings by which the case was brought into the district court, or as to the form and sufficiency of the first appeal bond, which was a prerequisite to the perfection of the appeal. Plaintiff says in his motion for additional bond filed on September 21, 1939, that the cause is before the court ‘on appeal from the judgment of the Justice of the Peace Court of Precinct 17,’ etc., and asks for the additional bond in the sum of $1500 (which was in fact granted in the sum of $750 in response to the motion and upon hearing) because of the damages which plaintiff estimates would arise if his contention be eventually sustained because of the long delay before the matter could be finally heard by the district court.

Likewise, a motion to dismiss following immediately the filing of such additional bond was based not upon any lack of jurisdiction on the part of the district court to require a bond or to move at all-jurisdiction had theretofore been recognized in this and the other motion-but the motion to dismiss challenged the additional bond given as not being ‘the bond required by the order of the court herein entered on the 13th day of December, for the following reasons * * *.’ Defendant urges that we need not, and should not, look back of such general appearance to determine what, if any, irregularities could have otherwise been relied upon. Any attack, he says, which could here be made upon the bond given would be directed only to the additional, or second, bond, that one given on December 26, 1939, in obedience to the order of the court of December 23rd so directing; that all irregularities and informalities touching the appeal to, or the commencement of action in, the district court are waived under the circumstances of this case.

It is suggested (but not decided) that jurisdiction in the district court to entertain such appeals from the justice of the peace rests not only upon the fact of an appeal being taken, but also upon the further condition, that the statutory bond be filed as required by 1941 Comp. Sec. 38-1801. Cf. State ex rel. Heron v. District Court, 46 N.M. 296, 128 P.2d 454. Even conceding the correctness of this claim, it must be presumed by reason of the trial court's retention of jurisdiction and in support of its judgment, absent an affirmative showing in the record to the contrary, that if found a good and sufficient bond had been tendered in connection with the appeal prayed for and allowed by the justice of the peace. It was an essential allegation of the petition under 1941...