Miller v. Klasner.

• Citation: 19 N.M. 21,140 P. 1107
• Decision Date: 28 April 1914
• Docket Number: No. 1573.,1573.
• Court: Supreme Court of New Mexico
• Parties: MILLERv.KLASNER.

19 N.M. 21

140 P. 1107

MILLER

v.KLASNER.

No. 1573.

Supreme Court of New Mexico.

April 28, 1914.

Syllabus by the Court.

It is a familiar and fundamental rule that a court can make no decree affecting the rights of a person over whom it has not obtained jurisdiction, or between the parties before it, which so far involves or depends upon the rights of an absent person that complete and final justice cannot be done between the parties to the suit without affecting those rights. Held, in a suit to enjoin A. from interfering with a certain ditch and the distribution of water therefrom, where A. was acting under authority of B., not a party to the suit, and who owned an interest in the ditch, and conducted water through the same for the irrigation of her lands, that B. was a necessary party to the suit, as complainant's right to the relief depended upon an adjudication of his right to the use of the ditch and water as against B.

The general rule is that a defendant must take advantage of the defect of parties defendant by demurrer or answer, failing in which the objection is waived, but this rule does not apply to an indispensable party, and where the court may not proceed to a decree or judgment without his presence.

A default judgment will be set aside as irregular, when it appears that the real party in interest was not made a party defendant.

Appeal from District Court, Lincoln County; E. L. Medler, Judge.

Action by Hurim M. Miller against Lillie C. Klasner. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

It is a familiar and fundamental rule that a court can make no decree affecting the rights of a person over whom it has not obtained jurisdiction, or between the parties before it, which so far involves or depends upon the rights of an absent person, that complete and final justice can not be done between the parties to the suit without affecting those rights. Held, in a suit to enjoin A from interfering with a certain ditch and the distribution of water therefrom, where A was acting under authority of B, not a party to the suit, and who owned an interest in the ditch, and conducted water through the same for the irrigation of her lands, that B was a necessary party to the suit, as complainant's right to the relief depended upon an adjudication of his right to the use of the ditch and water as against B.

Renehan & Wright, of Santa Fé, for appellant.

Geo. B. Barber, of Carrizozo, for appellee.

ROBERTS, C. J.

Appellee instituted this action in the district court of Lincoln county, to enjoin appellant from interfering with his right to the use of a stated amount of the water flowing through an irrigation ditch, known as “the school land ditch,” through which water was diverted from the Rio Hondo for the irrigation of appellee's lands, and certain lands alleged to be under the control of appellant. The prayer was for a determination of the rights of the parties in and to said waters, and an allotment of the use thereof upon certain days of each week, and injunction against appellant restraining her from interfering with the water during the time appellee was awarded its use, and for general relief. Appellant answered, denying generally the allegations of the bill. She also filed a cross-complaint, by which she asked for affirmative relief against appellee. A referee was appointed by the court to take the testimony and report the same to the court. Such referee served notice of the time and place of hearing by mailing to the attorney of each party a written notice thereof. Appellant's attorney, George W. Prichard, Esq., who resided in Santa Fé, received the said notice, and immediately notified the referee that he would not be able to be present at the time fixed, by reason of previous engagements. He also stated that he would notify his client, so that she could make other arrangements. The referee thereupon mailed a notice of the time and place of hearing to the appellant, by registered mail, but this notice was missent by the post office authorities to Roswell, N. M., and appellant did not receive the same until some time after the hearing. Appellant denied receiving any information from her said attorney of his receipt of said notice and inability to be present. At the time and place appointed, or an adjourned date, the referee proceeded to take the testimony, and reported the same to the court. The court, upon motion, and without notice to appellant, proceeded to consider the testimony so taken and the referee's report, and rendered judgment thereon. By its judgment the court awarded and decreed to the appellee a two-thirds in said ditch and all the water flowing therein, and to Ellen Casey, mother of appellant, not a party to the suit, a one-third interest in said ditch and all the water flowing therein. Thereupon the court proceeded to and did apportion the use of said water between the appellee and Ellen Casey, specifying the days of each week when each party should...