Hoover v. City of Albuquerque, 5421

• Decision Date: 28 June 1952
• Docket Number: No. 5421,5421
• Parties: HOOVER v. CITY OF ALBUQUERQUE.
• Court: New Mexico Supreme Court

Page 1038

245 P.2d 1038

56 N.M. 525

HOOVER v. CITY OF ALBUQUERQUE.

No. 5421.

Supreme Court of New Mexico.

June 28, 1952.

F. L. Nohl, Albuquerque, for appellant.

Vance Mauney, Albuquerque, for appellee.

SADLER, Justice.

The plaintiff sued in the district court of Bernalillo County to recover judgment against the City of Albuquerque, the defendant, on certain paving bonds. Judgment was entered against the City for $8,658.13. The defendant filed a motion four days later to set aside the judgment which the trial court granted. This appeal by plaintiff followed. A statement of what transpired in orderly sequence is necessary to understand the grounds upon which the plaintiff relies as appellant to secure a reversal.

The complaint was filed on May 10, 1950. The City being in default the plaintiff served Waldo H. Rogers, Esq., the City's attorney, with a motion for default on October 12 by depositing a copy of the motion in the United States mails. The motion was filed next day as was a motion to dismiss filed by the City which was based upon the ground that the complaint failed to state facts upon which relief could be granted.

Thereafter, on December 19, 1950, the motion to dismiss was overruled by the court by an order which gave the City ten days in which to answer, or otherwise plead. The City having failed to plead, the plaintiff on January 5, 1951, again moved for a default judgment against it. While the matter stood thus, Vance Mauney, Esq., an attorney associated with above-mentioned Waldo H. Rogers, city attorney, in a conversation with plaintiff's attorney requested the latter not to proceed further until the City could prepare an answer and investigate the matter. In the meantime and on January 8, 1951, Waldo H. Rogers, defendant's attorney, was appointed and qualified as one of the judges of the Second Judicial District of the State of New Mexico. Thereafter, on January 26, 1951, Vance Mauney, Esq., who had become substituted as attorney for the City due to the former attorney becoming district judge, filed an answer for the City. The defendant denied generally all of the plaintiff's allegations except that certain bonds described in the complaint had been issued by the City and that plaintiff was their holder and owner.

A copy of the answer filed had been mailed to plaintiff's attorney with a letter of January 17, 1951, by city attorney, Mauney, in which among other things he referred to a conversation with City Manager Wells who had agreed with him that there was no valid defense to the action and expressing his, Mauney's, willingness to go with plaintiff's attorney to see Judge Swope regarding the matter at any convenient time. The letter closed with this statement:

'Please advise me if you have any objections to the filing of this Answer and if not I am sure arrangements can be made for a judgment to be entered favorable to you.'

It was pursuant to this statement that judgment was entered against the City on January 27, 1951, which, within four days thereafter on January 31, 1951, the City moved to vacate and set aside. The motion mentioned reads as follows:

'Motion To Set Aside Judgment

'Comes now the Defendant, City of Albuquerque by its attorney and moves the Court to set aside that certain judgment signed and entered on the 27th day of January 1951 in the above entitled and numbered cause, on the ground that due to the change in the office of the city attorney the Acting City Attorney was not apprised of all the facts and circumstances surrounding this action and was mistaken as to certain facts in connection with this cause and as a result thereof, inadvertently approved the Judgment which was entered herein.

'As grounds for the above Motion, Defendant shows the Court the following:

'1. That there is now pending an appeal in the Supreme Court of New Mexico of a case involving bonds similar to those involved in this case which bonds were issued by the City of Tucumcari, New Mexico and which appeal will be important to the determination of questions involved in this cause.

'2. That the former City Attorney of the City of Albuquerque had not completed his fact investigation in this cause and had planned to take the deposition of Plaintiff in order to determine certains facts which will be determinative of the judgment to be entered in the cause.

'3. That although a summary investigation of the facts of this case was made by the Acting City Attorney of Albuquerque, still certain facts which were not brought to the attention of the Acting City Attorney until after the above mentioned judgment was entered have now been brought to light and are important to a just and final determination of the cause.

'Wherefore, Defendant prays that under the provisions of Rule 60(b), Rules of the District Courts of the State of New Mexico, that the aforementioned Judgment be set aside with leave to Defendant to further prepare its case for the trial thereof.'

The Court entered its order granting the motion on February 21, 1951, and it is from that order that plaintiff prosecutes this appeal.

It should be mentioned that in connection with the proceedings below certain affidavits were filed. One of them by F. L. Nohl, the plaintiff's attorney, was filed the same day judgment was signed, namely, January 27, 1951, and apparently...