Kalosha v. Novick

• Decision Date: 26 January 1973
• Docket Number: No. 9443,9443
• Citation: 505 P.2d 845,84 N.M. 502,1973 NMSC 10
• Parties: Olga KALOSHA et al., Plaintiffs-Appellees. v. Olga P. NOVICK, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 845

505 P.2d 845

84 N.M. 502

Olga KALOSHA et al., Plaintiffs-Appellees. v. Olga P. NOVICK, Defendant-Appellant.

No. 9443.

Supreme Court of New Mexico.

Jan. 26, 1973.

Modrall, Sperling, Roehl, Harris & Sisk, Dennis J. Falk, Kenneth L. Harrigan, Albuquerque, Neal & Neal, Donald D. Hallam, Hobbs, for appellant.

Paul A. Phillips, Sterling F. Black, Albuquerque, for appellees.

OPINION

STEPHENSON, Justice.

This action was brought in Santa Fe County District Court by four Russian citizens (plaintiffs) against an Arkansas resident (appellant) alleging that they are the heirs of deceased legatees under the will of a New Mexico decedent. The dispute centers on ownership and possession of real property located in Texas, Louisiana, Arkansas and several New Mexico counties other than Santa Fe. Plaintiffs seek to have themselves declared owners of the property, and to require the defendant to render an accounting for the period of her possession. It is also contended that the judgment in a Lea County case awarding the property to the appellant is null and void. The trial court granted plaintiffs' motion for summary judgment and the defendant appeals.

Inheritance of four-ninths of the estate of John Dashko, who died in Hobbs, New Mexico, in 1949, is the subject in controversy. John was born in Russia to Stefano and Elina Dashko and was known at that time as Ivan Dashko. He had a brother, Sawa, a sister, Elizabeth, and a sister named Aksenia who is the same person as the appellant.

John Dashko emigrated to the United States when he was fourteen years of age. He moved to Hobbs, New Mexico, in 1930. The appellant resided in Arkansas.

In 1936, John executed a will leaving all of his property to his wife, Fay, for her life and then one-third to Fay's father and mother, or the survivors of them or to their heirs. The remaining two-thirds of the estate was to be divided one-third to the appellant and her heirs, one-third to John's brother, Sawa Dashko and his heirs, and one-third to his sister, Elizabeth Hysze and her heirs. The will contained addresses for Sawa and Elizabeth.

John died in 1949, his will was probated in the Lea County Probate Court, and a decree determining heirship was entered.

On October 22, 1957, the life tenant, Fay Dashko, died. A year later appellant filed a petition in Lea County District Court seeking a determination that Sawa and Elizabeth were dead, that she was their sole heir and that, as such, she was entitled to their four-ninths share in the John Dashko estate. A judgment to that effect was entered in January, 1959.

The present action was filed in the Santa Fe County District Court on April 6, 1964. The plaintiffs, Olga Kalosha, Aleksander Kiula and Viktor Gushcha claim that they are the daughter and sons of Elizabeth Hysze and Iosif Dashko claims he is the surviving son of Sawa Dashko. It was alleged in the complaint that the appellant had wrongfully converted and received the accretions, income, profits and benefits resulting from such possession, use and enjoyment of said property, and that plaintiffs were the owners in fee simple absolute of the property. Plaintiffs prayed that they be declared to be the true and lawful owners of the property, that appellant be enjoined from selling the property or drawing, using or dissipating in any manner the rents, royalties, profits, income or other benefits derived from the property, and that she be required to render an accounting to plaintiffs.

On March 25, 1966, the trial court dismissed the plaintiffs' complaint with prejudice for their failure to appear for depositions. We reversed. Kalosha v. Novick, 77 N.M. 627, 426 P.2d 598 (1967).

On March 20, 1970, plaintiffs moved for summary judgment. The court granted the motion and entered a judgment finding the plaintiffs to be the heirs of Elizabeth and Sawa and granting other relief. The court made no mention of the Lea County judgment.

Appellant argues that jurisdiction did not lie in Santa Fe County, that certain fact issues make the granting of summary judgment improper and that the Lea County judgment cannot be collaterally attacked.

We will first consider the venue issue. This action was filed on April 6, 1964. Thereafter various pleadings were filed on behalf of appellant included among which are a general appearance, responses to various motions of the plaintiff, notices for the taking of depositions, a motion to dismiss and an appeal which resulted in the reversal of an order of dismissal. On June 22, 1967 the appellant filed her answer, which, after admissions and denials, included nine affirmative defenses raising various legal contentions. On the same day she filed motions for dismissal based upon several legal positions. Yet it was not until August 21, 1967, more than three years after the filing of the complaint, that we find the first assertion, in the form of a motion, that venue was improper. That was a motion to dismiss asserting that inasmuch as the Lea County judgment was under attack the cause must be addressed to that court, and that venue in Santa Fe County was erroneous. Also argued to the court below was a claim that since an interest in lands was the object of the suit, venue was improper because none of the lands were situate in Santa Fe County. It is upon this latter ground that appellant places her reliance here, predicated upon § 21--5--1 D(1), N.M.S.A.1953 which provides:

'When lands or any interest in lands are the object of any suit in whole or in part, such suit shall be brought in the county where the land or any portion thereof is situate.'

The thrust of appellant's argument is that the venue statute is 'mandatory' and, therefore, jurisdictional. Jurisdiction over the person can clearly be waived. Rule 12(h)(1) (§ 21--1--1(12)(h)(1), N.M.S.A.1953). Appellant's argument must necessarily pertain to subject matter jurisdiction which can be raised at any time during the proceedings under Rule 12(h)(3). See also, Heath v. Gray, 58 N.M. 665, 274 P.2d 620 (1954).

Appellant relies upon Lucus v. Ruckman, 59 N.M. 504, 287 P.2d 68 (1955) which was partially based upon § 21--5--1 D(1). Lucus held a De Baca County heirship decree void because it adjudicated ownership of land in Roosevelt and Eddy counties. It treated the statute as jurisdictional. Further reliance is placed by appellant upon Heath v. Gray, supra, and Atler v. Stolz, 38 N.M. 529, 37 P.2d 243 (1934). Each of those cases treats the venue statute with which we are concerned as being jurisdictional. We overrule them insofar as they equate venue with jurisdiction. Catron v. Gallup Fire Brick Co., 34 N.M. 45, 277 P. 32 (1929) and Jemez Land Co. v. Garcia, 15 N.M. 316, 107 P. 683 (1910) do not expressly equate venue with jurisdiction but neither do they distinguish between them, and might be so construed. Although these cases are factually distinguishable from the case at hand, we overrule them to the extent that they treat jurisdiction and venue as one and the same.

We recognize that the equation of jurisdiction and venue is almost as prevalent as the distinction between the two. However, in 20 Am.Jur.2d, Courts § 89, it is pointed out:

'Although venue has sometimes been treated as jurisdictional in nature, and the concepts 'jurisdiction' and 'venue' have a close relation that sometimes leads to a confusion between them, according to the apparently prevailing view, the two concepts must be distinguished. Venue, in the technical meaning of the term, means the place where a case is to be tried, whereas jurisdiction does not refer to the place of trial, but to the power of the court to hear and determine the case.'

Also, see Paige v. Sinclair, 237 Mass. 482, 130 N.E. 177 (1921); Stevens, Venue Statutes: Diagnosis and Proposed Cure, 49 Mich.L.Rev. 307 (1951).

The distinction between jurisdiction and venue has been drawn by this court on several occasions most of which involve interpretation of other sections of the venue statute with which we are dealing here. These cases clearly indicate that venue can be waived.

Singleton v. Sanabrea, 35 N.M. 491, 2 P.2d 119 (1931) is contra to the cases we overrule here. Singleton was an action to quiet title to real estate in Lea County and was brought there, but a default judgment was entered in Chaves County. In a motion to set aside the Chaves County judgment, the defendant argued that the court had no jurisdiction to determine title to land in Lea County. In response, we said 'Appellee is in error in asserting that the matter of jurisdiction of the court is involved. It is a matter of venue.' On the issue of waiver of venue, we cited Bowers on the Law of Waiver §§ 379, 380, which says in part:

"The venue of an action has always been a privilege which the defendant could exact or waive, even as to districts."

In Heron v. Gaylor, 53 N.M. 44, 201 P.2d 366 (1948) we held that in an action to enjoin persons from trespassing upon lands in Rio Arriba County filed in that county could be heard in Santa Fe County absent proper objection to venue by plaintiff. Plaintiff relied upon a portion of the statute in question dealing with actions for trespass, now § 21--5--1 E, N.M.S.A.1953. That section contains mandatory language as does subsection D(1).

We stated:

'If it be the plaintiff's position that the court acted without jurisdiction, then he is in erro; rather, it is a question of venue. (Citations omitted.)

'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. (Citation omitted.)'

The section of the venue statute applicable to transitory actions, now § 21--5--1 A, N.M.S.A.1953, was construed in Peisker v. Chavez, 46 N.M. 159, 123 P.2d 726 (1942). That section also contains mandatory language. Again, we distinguished between venue and jurisdiction and held that the former could be waived. Singleton, Heron, and Peisker adhere to the correct view...