Mccanna v. Mut. Inv. & Agency Co.
| Decision Date | 02 October 1933 |
| Docket Number | No. 3821.,3821. |
| Citation | 26 P.2d 231,37 N.M. 597 |
| Parties | McCANNAv.MUTUAL INVESTMENT & AGENCY CO. et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Bernalillo County; Milton J. Helmick, Judge.
Action by Nellie McCanna against the Mutual Investment & Agency Company and another. Judgment for plaintiff by default. From an order denying defendants' motion to vacate the default judgment, they appeal.
Remanded.
Party removes case to federal court at his peril and must see that his rights are protected in state court in event case is remanded.
J. S. Vaught, James W. Norment, and Simms & Botts, all of Albuquerque, for appellants.
W. A. Keleher, of Albuquerque, for appellee.
On July 2, 1930, appellee filed her complaint to quiet title to a tract of land located in Bernalillo county. On August 23, 1930, appellants filed notice, petition, and bond for removal of the cause to the United States District Court for the District of New Mexico, and an order was entered by the district court of Bernalillo county removing said cause. No other pleadings were filed by appellants in the state court.
On January 12, 1932, the cause was remanded to the district court of Bernalillo county because the United States District Court lacked jurisdiction, and on the same day a default judgment was entered against appellants.
On March 10, 1932, appellants filed a motion to vacate said judgment, alleging than they had a meritorious defense to the complaint, and because the default judgment was rendered the very they the cause had been remanded to the state court.
On March 16, 1932, the trial court entered an order denying and overruling the motion to vacate, for the reason that the appellants had not shown good cause to justify vacating the default judgment, from which final order appellants appeal.
That the district court had jurisdiction to render judgment by default appellants do not question, but contend that the action of the district judge was a clear abuse of discretion.
[1] That appellants had a good defense to the complaint is not alone sufficient to justify this court in holding the trial court abused its discretion in refusing to vacate a default judgment.
This case comes clearly within the rule laid down and established in this jurisdiction in the case of Citizens' Light, Power & Telephone Company v. Usnik, 26 N. M. 494, 194 P. 862.
[2][3] We have held adversely to appellants on every question here presented in the Usnik Case, and we cannot distinguish this case from the Usnik Case. The distinction sought to be made by eminent counsel for appellants that in the Usnik Case the appellee waited thirteen days, whereas in this case the appellee took judgment immediately, does not move us. The right to default is as complete and attaches as fully the very moment the state court resumes jurisdiction after remand as at any time subsequent thereto. Appellee had a legal...
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Kingsbury v. Brown
... ... Telephone Co. v. Usnik, 26 N. M. 494, 194 P. 862; ... McCanna v. Mutual Investment & Agency Co., 37 N. M. 597, 26 ... P.2d 231.) ... ...
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Postal Ben. Ins. Co. v. Johnson
... ... 544, 104 S.W. 1146; Poeggler v. Supreme ... Council of Catholic Mut. Ben. Ass'n, 102 Neb. 608, ... 168 N.W. 194; Columbia Star Milling Co. v ... Perrin Properties, supra; McCanna v. Mutual [64 ... Ariz. 35] Invest. & Agency Co., 37 N.M. 597, 26 P.2d ... ...
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Levine v. Lacy
...for more than four months after the service of the notice on him.' 199 Va. at 476, 100 S.E.2d at 694. In McCanna v. Mutual Investment & Agency Co., 37 N.M. 597, 26 P.2d 231, a case brought in the State court was removed to a Federal court and was afterwards remanded to the State court where......