Locke v. Trustees of N.M. Reform Sch..

• Decision Date: 07 December 1917
• Docket Number: No. 1951.,1951.
• Citation: 169 P. 304,23 N.M. 487
• Parties: LOCKEv.TRUSTEES OF NEW MEXICO REFORM SCHOOL.
• Court: New Mexico Supreme Court

23 N.M. 487

169 P. 304

LOCKE

v.TRUSTEES OF NEW MEXICO REFORM SCHOOL.

No. 1951.

Supreme Court of New Mexico.

Dec. 7, 1917.

Syllabus by the Court.

By section 5109, Code 1915, the Legislature created the New Mexico Reform School, and provided for the appointment of a board of trustees by the Governor, by and with the advice and consent of the senate, which said board of trustees was made a corporate body, and given the right to sue and be sued as such. Held, that an action in ejectment against such board of trustees to recover real estate of which they were in possession was not a “suit against the state.”

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Suit Against the State.]

Appeal from District Court, Colfax County; T. D. Leib, Judge.

Ejectment by Seon Locke against the Trustees of New Mexico Reform School. Demurrer to plea in abatement sustained, and judgment for plaintiff, and defendant appeals. Affirmed.

By section 5109, Code 1915, the Legislature created the New Mexico Reform School, and provided for the appointment of a board of trustees by the Governor, by and with the advice and consent of the senate, which said board of trustees was made a corporate body, and given the right to sue and be sued as such. Held, that an action in ejectment against such board of trustees to recover real estate of which they were in possession was not a “suit against the state.”

Frank W. Clancy, Atty. Gen., and W. R. Holly, of Springer, for appellant.

L. S. Wilson, of Raton, for appellee.

ROBERTS, J.

This was an action in ejectment instituted in the lower court by appellee against appellant to recover a lot in the village of Springer, Colfax county, N. M. The complaint was substantially in statutory form.

By section 5109, Code 1915, the trustees of the New Mexico Reform School were made a body corporate, with the right as such of suing and being sued; also certain other powers were conferred upon such corporate body. The trustees were to be appointed by the Governor of the state, with the advice and consent of the senate, and such corporate entity was created for the purpose of having the management and control of a reform school for boys.

To the appellee's complaint appellant filed what is called a plea in abatement in the record, which set up that the defendant is a corporation existing solely by virtue of the above statute; that on July 1, 1910, the territory of New Mexico purchased three lots from the owner thereof, one of which is the lot for which this action is brought, and that such lot was being used for the purpose of the reform school, it having upon it a small brick building, which is being used for a schoolhouse. It is further alleged that the possession or the right of possession the defendant has is the right given it as a state institution and agency of the state of New Mexico, and therefore the defendant was alleged to be only a nominal defendant, and the state to be the real party in interest, and that the action was in effect against the state of New Mexico; wherefore the court was alleged to be without jurisdiction of the person of the appellant, or the subject of the action. The court sustained a demurrer to the plea in abatement, and, appellant declining to plead further, judgment was rendered for appellee.

The sole question involved in the case is whether or not the plea in abatement shows that the action was a suit against the state. Clearly it was not. The trustees of the New Mexico Reform School, which was a corporate entity, was, of course, an agency of the state, through which it was administering the reform school, but the right to sue this state agency had been conferred by statute. While this right may be a limited right, clearly it would exist in the present case because the act of retaining possession of this real estate was the corporate act of the agency thus created. Unless it were permissible to institute an action in ejectment in such a case as this, it would be possible for this and similar agencies created by the state for the management of various institutions to arbitrarily dispossess owners of their property and take possession thereof, and such owners would be without any redress whatever.

The action is in no sense against the state, and it is not bound by the judgment of the district court, but might litigate with appellee the question of its title to the premises in question. The action simply determines as between appellee and appellant the right of possession. While it is true appellant's right of possession is dependent upon title in the state, assuming the plea in abatement to state the facts correctly, yet the adjudication of the question of the right of possession in this suit would not be binding upon the state should...