Light v. Usnik.

• Decision Date: 07 January 1921
• Docket Number: No. 2342.,2342.
• Citation: 26 N.M. 494,194 P. 862
• Court: New Mexico Supreme Court
• Parties: CITIZENS' LIGHT, POWER & TELEPHONE CO.v.USNIK.

26 N.M. 494

194 P. 862

CITIZENS' LIGHT, POWER & TELEPHONE CO.

v.USNIK.

No. 2342.

Supreme Court of New Mexico.

Jan. 7, 1921.

Syllabus by the Court.

A defendant in default for failure to file an answer within the time limited by the statute is not entitled to notice of an application for default judgment.

The filing of a petition for removal of a cause from the state to the federal court and the bond is not an appearance in the state court, and does not extend the time to appear and plead therein.

Where a case has been improperly removed from a state court to a federal district court, and is remanded by the federal court to the state court, the federal court never acquired jurisdiction of such case, and an answer or other pleading filed in the federal court did not have the effect of a pleading in a state court, and did not serve to extend the time of the defendant to answer the complaint.

Where in such a case the cause is remanded to the state court, and the answer or other pleading filed in the federal court is not certified to the state district court, or refiled therein in 13 days after the remand and almost 4 months after the service of summons in the cause, a default is properly entered against the defendant for failure to plead or answer.

In such a case the court did not abuse its discretion in refusing to set aside the default judgment upon a showing that an answer had been filed in the federal court, and no other valid excuse being offered.

Appeal from District Court, McKinley County; Raynolds, Judge.

Suit by the Citizens' Light, Power & Telephone Company against Anton Usnik. From denial of a motion to set aside a default judgment for plaintiff, defendant appeals. Affirmed.

In such a case the court did not abuse its discretion in refusing to set aside the default judgment upon a showing that an answer had been filed in the federal court, and no other valid excuse being offered.

Bert D. Richards, of Gallup, for appellant.

Herbert C. Denny, of Gallup, for appellee.

ROBERTS, C. J.

On the 29th day of December, 1917, appellee filed in the district court of McKinley county its complaint against the appellant in which it sought reformation of the description of a deed executed and delivered to the appellant theretofore by the appellee. Summons was duly served on appellant in the early part of January. January 25, 1918, appellant appeared in the district court and filed a petition and bond for removal of the said cause to the federal District Court for the state of New Mexico. No demurrer, answer, or other pleading was filed to the complaint. An order of removal was entered, and thereafter, on the 4th day of April, 1918, the federal District Court entered its order remanding the cause to the district court of McKinley county, on the ground that the federal court had no jurisdiction of the cause and the same had been improperly removed. On the 5th day of April the order of remand was filed in the office of the clerk of the district court of McKinley county. Thereafter, on the 16th day of April, 1918, no pleading having been filed by appellant in the case in the state court, a certificate of default was entered by the clerk, and on the next day the state district court entered a judgment against the appellant on the merits. On the next day appellant filed with the clerk of said court an answer and cross-complaint. On the 14th day of May thereafter appellant filed a motion to set aside the judgment by default, and as ground for the motion alleged that appellant's answer and cross-complaint were on file in the United States District Court, and that, said answer and cross-complaint having been so filed in that court while the case was pending there, appellant was not in default; secondly, that if the filing of the same in the federal court did not have the effect of a filing in the state court, appellant had full 20 days' time within which to answer in the state court after the remand. On the 15th day of May, 1918, appellant took the answer and cross-complaint which he had theretofore filed in the federal court and filed the same in the state court, and on the 7th day of June he filed another motion to set aside the judgment on the ground that the judgment had been irregularly entered because of the same reasons set forth in the first motion mentioned, and on the further ground that appellant had been given no notice of the application for judgment. The court denied the motion to set aside the judgment, from which order this appeal is prosecuted.

[1] 1. The first question which arises is as to whether appellant was entitled to notice of the application for the default judgment. The statute requires no such notice, and therefore it is not essential. By being in default a party is not entitled to participate in the future proceedings of the cause. So long as the default order is in full force and effect, the right to participate is cut off, and a party's remedy is by first securing the vacation of the default order. Nuestel v. Spokane International R. Co., 27 Idaho, 367, 149 Pac. 462.

[2][3][4] 2. Was the default properly entered? The filing of the petition for removal to the federal court and the bond was not an appearance in the state court and did not extend the time to appear and plead therein. State v. American Surety Co., 26 Idaho, 652, 145 Pac. 1097, Ann. Cas. 1916E, 209. The usual practice in such cases is for the defendant to demur...