HERON v. GAYLOR

• Decision Date: 23 December 1948
• Docket Number: No. 5153,5153
• Citation: 53 N.M. 44,201 P.2d 366
• Parties: HERON v. GAYLOR.
• Court: New Mexico Supreme Court

53 N.M. 44

201 P.2d 366

HERON

v.GAYLOR.

No. 5153.

Supreme Court of New Mexico.

Dec. 23, 1948.

[201 P.2d 367, 53 N.M. 45]

Kenneth A. Heron, of Chama, pro se.

Bigbee & Kool, of Santa Fe, for appellee.

McGHEE, Justice.

This action was instituted by the plaintiff-appellant in the District Court of Rio Arriba County on September 28, 1937, seeking to enjoin the defendant-appellee from trespassing on certain lands. Summons was served and presumably the defendant answered seasonably, but the answer is not a part of the record. On June 19, 1944, the plaintiff filed his first amended complaint and an answer thereto was filed on July 21, 1944. Nothing further appears to have been done in the case until on July 11, 1947,when the defendant filed a motion to dismiss under Rule 41(b) and (e), Rules of Civil Procedure, for the reason that more than two years had elapsed since anything had been done to bring the case to final determination.

The next action in the case was when the motion came on for hearing at Santa Fe, Santa Fe County, New Mexico, on January 21, 1948, pursuant to a setting and notice as provided by Rule 6 of the District Court of the First Judicial District of which Rio Arriba County is a part, which reads:

'6. That at 10:00 A. M., on the Wednesday following the third Monday of each month, the Court, at Santa Fe, will hear all motions which have been pending and served upon opposing counsel more than ten (10) days previously, provided that on timely application, motions may be continued until a definite date.

'(a) Notice of the hearing upon any motions hereinbefore mentioned, shall be mailed to attorneys of record by the Clerk of this Court not less than five (5) days prior to said day.

'(b) Said motion day shall be applicable to all causes, either in Santa Fe or in Rio Arriba Counties, provided that should demand be made, that any of said causes pending in Rio Arriba County shall be heard at Tierra Amarilla, then and in such event, the setting of the day for the hearing on said motion will be made upon the aforesaid day.'

The defendant did not make any objection to hearing the case in Santa Fe or appear for the hearing, whereupon the following order was entered:

'Order

'This matter having come on for hearing upon the Motion to Dismiss filed by the defendant, the defendant appearing by his attorney, Harry L. Bigbee, and the plaintiff not appearing, although properly served with notice of time of hearing on said motion by the Clerk of the District Court of the First Judicial District, whoduly gave more than five days notice of the time for hearing, as required by the Rules of Civil Procedure in the District Courts of the State of New Mexico, and the Rules of the District Court of the First Judicial District, and the Court further finding that this motion was duly set down for hearing at ten o'clock, A.M., at the Courthouse in Santa Fe, New Mexico, on the 21st day of January, 1948, at which time this matter was brought on for hearing, the Court having waited until eleven o'clock, A.M., to hear said motion, and the Court further finding that the plaintiff had waived a hearing in Rio Arriba County and had consented to the hearing of this motion in Santa Fe County by failing to demand a hearing in Rio Arriba County as provided in the Rules of the District Court for the First Judicial District, and the Court finding that it has jurisdiction of the parties and subject matter hereof, and jurisdiction to hearand determine the said motion in Santa Fe County, and that the plaintiff had waived a hearing in Rio Arriba County and consented to a hearing in Santa Fe County, and the Court being fully advised in the matter,

'Finds, that all facts set forth in the defendant's motion are true and correct as disclosed by the record in said cause, and the records in the office of the Clerk of the District Court of the First Judicial District,

'Wherefore, the Court orders, that the above entitled and numbered cause be and the same is hereby dismissed with prejudice.

'/s/ David W. Carmody

'District Judge'

On February 20, 1948, the plaintiff filed the following motion to vacate the judgment of dismissal:

'Comes now the plaintiff in this cause and, appearing special and for the purpose of this motion only, moves the Court to vacate the judgment entered in this cause on the 23rd day of January, 1948, and for grounds states:

'1. That this action involves land in Rio Arriba County, New Mexico, and the venue of the cause, and the place where all issues of fact and law are to be determined is in Rio Arriba County, New Mexico (Sec. 19-501, 1941 Comp.Stats.), and this plaintiff has not consented to any change of venue to Santa Fe County, where the hearing on the defendant's motion to dismiss plaintiff's complaint was had on the 21st day of January, 1948. Peisker v. Chavez, 46 N.M. 159, 123 P.2d 726.

'2. That the record herein, and the Judgment heretofore entered, as above, indicate that rule of the District Court of the First Judicial District has been adopted requiring this plaintiff to appear in Santa Fe County, outside of the venue of the case, but plaintiff states that such a rule is not binding on this plaintiff, particularly, for these reasons:

'a. It requires this plaintiff to appear for the trial of points of law or facts before a Court outside of the venue of this cause, and such a rule is contrary to the provisions of Sec. 19-101(82), adopted by the Supreme Court of the State of New Mexico, governing procedure of District Courts, Peisker v. Chavez, 46 N.M. 159, 123 P.2d 726.

'b. That no statute or rule of Court requiring this plaintiff to appear before this Court outside of the venue of the case had been adopted prior to the institution of this action, and any such rule or statute adopted after the institution of this action could not affect the rights of the plaintiff in the case. Constitution of New Mexico, Art. 4, Sec. 34, and City of Roswell v. Holmes et al., 44 N.M. 1, 96 P.2d 701.

'3. That this plaintiff, under the provisions of Sec. 19-508, 1941 Comp.Stats., has a right to observe and form an opinion as to the impartiality of the Judge now presidingover the District Court of Rio Arriba County, N.M., and this right could not be extinguished until ten days before the opening day of the June, 1948, regular term of the District Court in Rio Arriba County (Sec. 19-509, 1941 Comp.Stats.).

'4. That the judgment entered herein is with prejudice and thus affects a substantial right of the plaintiff to renew the action within six months in accordance with the provisions of Sec. 27-113, 1941 Comp. Stats.'

On March 17, 1948, an order was entered denying the motion to vacate the judgment.

The first point on which the plaintiff relies for a reversal is that as the case was for trespass upon lands in Rio Arriba County, that it was instituted in that county, that all the parties reside there, that he could not be required to appear before the court in Santa Fe, New Mexico, for a hearing on matters of law or fact, and that any action taken in Santa Fe without his specific consent was void as to him.

If it be the plaintiff's position that the court acted without jurisdiction, then he is in error; rather, it is question of venue. Singleton v. Sanabrea, 35 N.M. 491, 2 P.2d 119; Peisker v. Chavez, 46 N.M. 159, 123 P.2d 726. The case was properly filed in Rio Arriba County where the acts complained of occurred and where the parties resided.

The plaintiff had the right to have the hearing held at the county seat of Rio Arriba County and failure to hold it there was error unless such right has been waived. Peisker v. Chavez, supra.

The rule on the...