Moya v. Catholic Archdiocese of New Mexico
| Decision Date | 23 October 1978 |
| Docket Number | No. 11756,11756 |
| Citation | 92 N.M. 278,1978 NMSC 78,587 P.2d 425 |
| Parties | Jose Manuel MOYA et ux., Plaintiffs-Appellees, v. The CATHOLIC ARCHDIOCESE OF NEW MEXICO, a corporation sole, Joe Moya, et al., Defendant-Appellant. |
| Court | New Mexico Supreme Court |
This is a suit to quiet title brought by plaintiff Jose Manuel Moya (appellee) in the District Court of Santa Fe County. The district court entered default judgment against defendant Joe Moya (appellant). Following a hearing, appellant's motion to reopen the proceedings and set aside the default judgment was denied. Appellant appeals. We reverse.
The pertinent facts concern the method by which process was served upon appellant. The suit was filed on April 28, 1977. On May 27, 1977, a copy of the complaint and summons was left at appellant's home. It is undisputed that the papers were rolled up and inserted in the door handle of a screen door on the front porch of appellant's house. The front porch is enclosed. There is evidence that the documents were found under a couch on the porch and were not discovered by appellant until some time in August 1977, after default judgment had been entered on August 8, 1977. Seventeen days later appellant filed his motion to reopen the proceedings and to set aside the default judgment, which the trial court denied.
Appellant contends that the district court lacked jurisdiction over him because the method by which process was served failed to meet the requirements of N.M.R.Civ.P. 4(e)(1) (§ 21-1-1(4)(e)(1), N.M.S.A.1953 (Repl.1975)).
N.M.R.Civ.P. 4(e)(1) reads, in pertinent part: "(A)nd if no such person be found willing to accept a copy, then service shall be made by Posting such copies in the most public part of defendant's premises." (Emphasis added.) In this jurisdiction, "posting" is substituted service. Vann Tool Co. v. Grace, 90 M.M. 544, 566 P.2d 93 (1977). Statutes authorizing substitute service are to be strictly construed. Household Finance Corporation v. McDevitt, 84 N.M. 465, 505 P.2d 60 (1973). The word "posting" as used in Rule 4(e)(1) means to affix, attach or otherwise fasten up physically And to display in a conspicuous manner. Moody v. Winchester Management Corp., 321 A.2d 562 (D.C.App.1974).
This is a case of first impression in this jurisdiction. Other jurisdictions have held that posting summons, in the manner done in this case, does not constitute valid substituted service. An often quoted case on point is Sours v. State Director of Highways, 172 Ohio St. 242, 175 N.E.2d 77 (1961). The Ohio statute permitted substituted service upon a defendant by "leaving a copy at his usual place of residence." The deputy sheriff, finding no one at home, attempted to make service by placing a rubber band around the summons and complaint and attaching the same to the outside doorknob of the house. The defendants did not enter an appearance or plead to the action and were defaulted. In holding that there was no valid service, the court stated:
For substituted service by leaving a copy of the summons at the usual place of residence to be valid, the summons must be left at the residence of the defendant in such a place and in such a manner that it is reasonably probable that the defendant will actually receive the notice of the action against him. (Citations omitted.)
Does the fastening of a summons to the doorknob of the residence fulfill the above requirements? . . .
One must take into consideration the fact that today it is common practice of large numbers of advertisers and other door-to-door canvassers to attach their sundry materials...
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Moya v. Catholic Archdiocese of New Mexico
...to the door handle of his front screen porch but were found, months later, under a couch on that porch. See Moya v. Catholic Archdiocese, 92 N.M. 278, 587 P.2d 425 (1978). We remanded the case with instructions for the district court to set aside the default judgment as to defendant and to ......
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...The defendants rely in part upon the requirement of a strict construction of the substituted service rule. Moya v. Catholic Archdiocese, 92 N.M. 278, 587 P.2d 425, 426 (1978). The defendants have argued that under a strict construction of the rule the chief deputy's statement concerning Bar......
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...(K) must "be strictly construed and strictly followed." Owens v. Owens, 259 P. 822, 823 (N.M. 1927); see also Moya v. Catholic Archdiocese of N.M., 587 P.2d 425, 426 (N.M. 1978), rev'd on other grounds, 755 P.2d 583 (N.M. 1988); Hutchen v. Hubbell, 461 P.2d 413, 415 (N.M.1969). NMRA 1-004(K......
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