Hignett v. Atchison

• Decision Date: 18 December 1928
• Docket Number: No. 3272.,3272.
• Citation: 33 N.M. 620,274 P. 44
• Court: New Mexico Supreme Court
• Parties: HIGNETTv.ATCHISON, T. & S. F. RY. CO.

33 N.M. 620

274 P. 44

HIGNETT

v.ATCHISON, T. & S. F. RY. CO.

No. 3272.

Supreme Court of New Mexico.

Dec. 18, 1928.

Syllabus by the Court.

Question of sufficiency of summons is waived by appearance and participation in the trial.

Rule 4 of practice for district courts (14 N. M. 711, 107 P. xi) does not contravene article 6, § 27, of state Constitution nor section 3224, Code 1915.

Additional Syllabus by Editorial Staff.

Summons and affidavits attached thereto filed in justice of the peace court, which, when considered together, were sufficiently specific to bar another action, were not fatally defective, in that, under Code 1915, §§ 3184, 3189, summons need only set forth the nature of the action without the necessity of formal written pleading.

Appeal from District Court, Doña Ana County; Franger, Judge.

Action by M. P. Hignett against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff on appeal from the justice of the peace court, and defendant appeals. Affirmed and remanded.

Law relating to docketing appeals from justice court held not in conflict with law authorizing trial de novo. Code 1915, § 3224.

Holt & Holt, of Las Cruces, and Reid, Hervey & Iden, of Albuquerque, for appellant.

J. H. Paxton, of Las Cruces, for appellee.

BICKLEY, J.

Appellee filed an affidavit in the justice of the peace court alleging that appellant had killed his horse, by reason of which it owed appellee $175. Summons was issued in which the constable was commanded to summon the appellant to answer a civil action more fully described in the attached affidavit, in a plea of damages. The return recites service of the summons on the agent of the appellant, railroad company.

The record shows that the case was postponed by agreement on three separate occasions; that a hearing was had in which evidence was introduced, and argument made by counsel for plaintiff (appellee) and for defendant (appellant) by its claim agent. Judgment was rendered in favor of plaintiff in the sum of $100 and costs. Notice of appeal was given, appeal bond was filed by appellant and approved by the court, and said cause “passed to the September term of the 3d Judicial Court at Las Cruces, N. Mex.”

A transcript of the proceedings in the justice of the peace court and the appeal bond were duly transmitted from the justice of the peace court to the district court. On March 26, 1927, the cause came on for hearing, upon the motion of appellee for the affirmance of the judgment rendered in the justice of the peace court. The court found, among other things, that the appellant had failed to procure the docketing of its appeal in the district court, and that appellee had procured the docketing of said appeal and paid the clerk's fee for said docketing, and the court thereupon granted the motion of appellee and affirmed the judgment.

[1] Attack is made on the judgment because it is said neither the summons nor affidavit attached to same did not contain the names of the parties and did not state a cause of action. It may be true that a summons might be so fatally defective on account of omission of some statutory requisite that the court would acquire no jurisdiction over the defendant; but, in the case at bar, the defendant appeared generally by agreeing to continuances and by participating in the hearing in the justice of the peace court, and, when it took an appeal and filed its appeal bond, it in effect entered its appearance in the district court. See Pickering v. Palmer, 18 N. M. 475, 138 P. 198, 50 L. R. A. (N. S.) 1055. We hold that the court had jurisdiction of the parties.

[3] Appellant's second proposition is that the proceedings are fatally defective because neither the summons nor affidavit stated a cause of action. There seems no doubt that the affidavit attached to the summons and referred to therein may be considered together. Thus considered, the statement of facts is sufficiently specific to bar another action, and that is all that is required under the justice of the peace practice, which requires that the summons set forth “the nature of the action,” and which permits the parties to plead orally, and does not require formal...