McDONALD v. PADILLA
| Decision Date | 02 March 1949 |
| Docket Number | No. 5055,5055 |
| Citation | 202 P.2d 970,53 N.M. 116 |
| Parties | McDONALD v. PADILLA et al. |
| Court | New Mexico Supreme Court |
Owen B. Marron and Alfred H. McRae, both of Albuquerque, for individual appellants.
Hannett & Hannett, of Albuquerque, for appellant Town of Atrisco.
Quincy D. Adams and D. A. Macpherson, Jr., both of Albuquerque, for appellee.
This is a statutory action, brought by plaintiff (appellee here) to quiet title to 205.26 acres of land, a part of the town of Atrisco Grant. The plaintiff claims under a tax deed from the state, and the defendants, each claiming some part of the land in suit, allege that the tax title under which appellee claims is void and sues by cross action to quiet the title to the land claimed by him in himself. If plaintiff's tax deed is valid, as held by the trial court, then the cause should be affirmed, otherwise it should be reversed and rendered for defendants.
The question then is whether the plaintiff's tax deed is valid. The facts are in substance as follows:
In 1920 the land in suit was a part of the common lands of the town of Atrisco Grant, a confirmed Mexican Pueblo grant. In that year these lands were assessed for taxes. Thereafter, on December 17, 1920, a suit was filed in the district court of Bernalillo County by the trustees of the Atrisco Grant, for the purposes stated in the complaint, which was in words and figures as follows:
Board of Trustees of the Town of Atrisco
v.
In the District Court of the County of Bernalillo State of New Mexico
'Plaintiff in the above entitled cause complains of the defendant and shows to the court that the said defendant is the assessor of Bernalillo County and that he has assessed and placed upon the tax roll of 1920 the property of said plaintiff although by two decisions of this court it has been held that the said property is not subject to taxation. 'Plaintiff therefore prays that by an order of this court the said defendant be required to strike out from said tax roll the assessment of the said property, and that his successor or successors in office be restrained and enjoined from making any like assessment in the future.
(SEAL)
By (Sgd.) David J. Metzgar, President.'
The complaint was endorsed as follows:
Board of Trustees of Town of Atrisco
v.
Stephen E. Roehls
Assessor Bernalillo Co.
Filed in my office this
Dec. 17, 1920
Nestor Montoya, Clerk
By Harry F. Lee (Written in, in ink, and
initialed OBM and DM, Jr. (Sgd.) Deputy.
George R. Craig, Dist. Atty.'
The following decree was entered:
v.
Stephen E. Roehl, Assessor of Bernalillo County}
Upon reading and filing the complaint of said plaintiff, from which it appears that the defendant has assessed and placed upon the tax roll of 1920, the property of plaintiff which has, by two decisions of this court, been held exempt from taxation.
It is ordered and adjudged by the Court, as prayed in said complaint, that the defendant as such assessor as aforesaid, be, and he hereby is, required to cancel and erase the said assessment upon the tax roll of 1920; and it is further
Ordered and adjudged that the successor and successors of the said defendant in the said office of assessor be and hereby are restrained and enjoined from again assessing the said property which, as aforesaid, has been held to be exempt from taxation.
(Sgd.) M. E. Hickey, District Judge.'
The records of Bernalillo County further show in connection with this cause the following docket entries:
'1920
Dec. 17 Filing Petition for Injunction
Dec. 17 Filing Final Order Rec. XI page 466
Dec. 17 Certified Copy to Assessor.'
No other documents are recorded or in the court file. No appeal was taken from this judgment.
In the years of 1935, 1936 and 1939, while the title of the lands described in the complaint was in the town of Atrisco, it was inadvertently assessed for those years to Phillip Hubbell and others of that name (all of whom were strangers to the title), upon the mistaken belief that the Hubbells owned the land and that it was not the property of the town of Atrisco. The defendants and the town of Atrisco had no notice of this assessment at any time prior to the issuance of the tax deeds to plaintiff.
The taxes so assessed were not paid and the land was sold to the state of New Mexico for delinquent taxes, based on those assessments. The plaintiff purchased the tax title from the state, upon which alone his claim rests. The individual claim of each defendant is based upon a deed fromthe town of Artisco, executed after the property was assessed for 1939. From the date of the entry of the decree in 1920, herein copied, up to the year of 1946 the trustees of the town of Atrisco and the several assessors of Bernalillo County relied thereon as evidence that the property was exempt from taxation, and the latter refused to knowingly assess the common lands of the town of Atrisco; and only assessed the land in suit on the mistaken belief that it was owned by the Hubbells. There is nothing in the file or record of this case to indicate the basis in fact for the conclusion of the court that the property was exempt from taxation. There was no other record introduced in evidence pertaining to case No. 12,666.
The trial court concluded that the decree of 1920 is void for lack of 'jurisdiction over the defendant Stephen E. Roehl, Assessor of Bernalillo County, or his successors in office.'
The finding upon which this conclusion is based is as follows:
'That it appears from the record in Cause No. 12,666, on the docket of the District Court of Bernalillo County, New Mexico, in which an order was entered signed by Judge M. E. Hickey, which order was received in evidence herein as defendants' exhibit 2, that no summons was issued nor process served upon the defendant, and no appearance for the defendant was entered.'
The finding not attacked would be conclusive but for the fact that defendants' exhibit 2 referred to in it, which was also made a part of the findings, does not support it. Construing them together, the most that we can make of it is that neither the judgment nor any of the proceedings in evidence disclose whether process was issued or served on the defendants.
The docket has three entries, showing the filing of (1) the complaint, (2) the 'Final Order,' and (3) 'Certified Copy to Assessor,' all on December 17, 1920; and that is all.
The rule is that as against a collateral attack, a judgment is valid unless the contrary appears in the judgment roll, and the omission of every step in the proceedings except the entry of the judgment, does not overcome the conclusive presumption of regularity of a judgment when collaterally attacked, if the record does not affirmatively disclose the omissions. State v. Patten, 41 N.M. 395, 69 P.2d 931; Dallam County Bank v. Burnside, 31 N.M. 537, 249 P. 109; Davis v. Tuggle's Adm'r, 297 Ky. 376, 178 S.W.2d 979; Hall v. Johnston, 9 Cir., 86 F.2d 820; White v. White, 142 Tex. 499, 179 S.W.2d 503; West v. Capitol Trust & Savings Bank, 113 Mont. 130, 124 P.2d 572; Lewis v. Lewis, 238 Mo.App. 173, 176 S.W.2d 556.
We stated in substance, in State v. Patten, supra, and we now hold, that every presumption not inconsistent with the record, is to be indulged in favor of the jurisdiction of courts of general jurisdiction whose judgments are collaterally attacked; and their judgments, though void for want of jurisdiction and would be so held on direct attack, cannot be questioned on that ground when attacked collaterally, unless the lack of jurisdiction appears affirmatively in the judgment roll.
It is asserted by appellee that the judgment is void because of the 'failure of the court to issue process; failure to service process on the defendant, and failure of defendant to enter an appearance in the case.'
But none of these alleged defects appear affirmatively in the record. Mere silence of the record on jurisdictional facts does not render the judgment void on collateral attack. The omission must affirmatively appear in the record. Hall v. Johnston, supra; Davis v. Tuggle's Adm'r, supra; West v. Capitol Trust & Savings Bank, supra; State ex rel. Delmoe v. District Court, 100 Mont. 131, 46 P.2d 39. Nothing appears in the record regarding the issuance of process, its service or the appearance of the defendant. The recital in the judgment that 'upon reading and filing the complaint, etc, it is ordered,' isnot such an affirmative statement as would satisfy the rule. First, the record discloses that the complaint was filed by the district attorney, and the parties agree that this is true. We are not advised of the hour it was filed, or when it was read by the court, except that all the proceedings occurred on the same day. This, however, is not an affirmative statement that process was not issued or served, or that defendant did not enter his appearance. The record indicates that he received a copy of the complaint, which ordinarily accompanies process, and nothing else.
Once process is served the trial court has jurisdiction of the parties, and if it has jurisdiction of the subject matter, it can enter a valid judgment immediately after service of process, in the absence of an appearance or answer. Such a judgment is irregular, and may be set aside upon motion within a year of its entry under statutory authority; but it is not void. We have so decided in two cases. The question was decided in Dallam County Bank v. Burnside, 31 N.M. 537, 249 P. 109, and again in Field v. Otero, 35 N.M. 68, 290 P. 1015, 1016. In the latter case we overruled a decision of this court and two decisions of the Territorial Supreme Court which held to the contrary. We stated:
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