Northcutt v. King
| Decision Date | 17 December 1917 |
| Docket Number | No. 1993.,1993. |
| Citation | 23 N.M. 515,169 P. 473 |
| Parties | NORTHCUTTv.KING et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The irregularity which justifies the setting aside of a judgment within one year from its rendition, under provisions of section 4230, Code 1915, is defined to be the want of adherence to some prescribed rule or mode of proceeding; and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time or improper manner. It is a departure from some prescribed rule or regulation.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Irregularity.]
In an action upon a foreign judgment, where the answer pleads the bar of the statute of limitations (section 3347, Code 1915), and the reply sets up nonresidence as a defense to the bar of the statute (section 3352, Code 1915), a judgment entered upon the theory that defendants had agreed to file an affidavit as to residence, and had failed to do so, was irregular, in that there is no statute and no order of court requiring such affidavit; for which reasons the entry of the judgment was contrary to the course of law and practice of the courts.
Appeal from District Court, Otero County; Medler, Judge.
Action by Carlton Northcutt against W. H. King and Delbert King, copartners under the firm name of King & Son. Judgment for defendants dismissing the cause, and plaintiff appeals. Affirmed.
On May 12, 1913, the appellant instituted a suit in the district court of Otero county, N. M., on a judgment obtained in the state of Colorado on March 21, 1905. The defendants in the district court answered the complaint setting up that the cause of action was barred by the statute of limitations, more than seven years from the date of the rendering of said judgment on which the cause of action was based, having elapsed before this suit was instituted. The plaintiff replied to said answer setting up that the action was not barred by the statute of limitations, for the reason that neither of the defendants had resided in the state of New Mexico for seven years prior to the commencement of the action. The matter was referred to a referee to take testimony. After about 18 months had elapsed, the trial court entered a judgment for the plaintiff, assigning as a ground therefor that the defendants had failed and neglected to submit an affidavit or proof of residence. A few days after the entry of this judgment the defendants filed a motion to set aside the judgment on the ground that the attorney for the defendants had been negligent, and on the further ground that the affidavit of residence was immaterial to the issue involved in the case. This motion was subsequently sustained and the judgment set aside. The defendants then moved the court for judgment on the pleadings, which motion was sustained and an order made dismissing the cause at plaintiff's cost. From this judgment the plaintiff appealed.
In an action upon a foreign judgment, where the answer pleads the bar of the statute of limitations, section 3347, Code 1915, and the reply sets up nonresidence as a defense to the bar of the statute, section 3352, Code 1915, a judgment entered upon the theory that defendants had agreed to file an affidavit as to residence, and had failed to do so, was irregular, in that there is no statute and no order of court requiring such affidavit; for which reasons the entry of the judgment was contrary to the course of law and practice of the courts.
J. G. Northcutt, of Trinidad, Colo., and Dean Sherry, of Alamogordo, for appellant.
L. R. York, of Alamogordo, for appellees.
[1] The appellant is attacking the authority of the trial court to set aside and vacate its judgment, and directs our attention to the case of Fullen v. Fullen, recently decided by this court, and reported in 21 N. M. 212, 153 Pac. 294, in which case this court, through Mr. Justice Parker announced the rule that final judgments of the district courts in cases tried without a jury became final when rendered, and then and there pass from the further control of the court, except in two instances, viz. in cases of defaults for a period of 60 days (section 4227, Code 1915), and in cases of irregularly entered judgments for a period of one year (section 4230, Code 1915); and except for such purposes as all courts always retain control over their judgments. Appellant contends that, this being the state of law in this jurisdiction, the court might very properly hold that the judgment originally entered by the trial court was a judgment by default, even though the defendants appeared in the case and answered, and should this court so hold, then, it is contended, the district court was without authority to set aside the judgment, for the reason that the motion therefor only advanced as a reason the negligence of defendants' counsel. The motion to set aside the judgment did raise the question as to the materiality of the affidavit called for from the defendants, in the matter of their residence in New Mexico, but appellant argues that the materiality of the affidavit in question goes to the merits of the case, which should not have been passed upon by the district court in considering the motion to set aside and vacate the judgment. These questions, however, we deem it unnecessary to consider, for the reason that if the trial court was justified in setting aside the judgment in question on the ground of irregularity in its entry, we are not concerned with the question of whether or not the original judgment was a default judgment. In this respect appellant contends that the motion to set aside the judgment does not assert that any irregularity existed in its entry, and that the only matter in the motion that could possibly be construed as an...
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McLeod v. Provident Mut. Life Ins. Co. of Philadelphia
...judgment is one rendered contrary to the method of procedure and practice allowed by the law in some material respect. Northcutt v. King, 23 N.M. 515, 169 P. 473. An erroneous judgment is one rendered in accordance with the method of procedure and practice allowed by the law, but contrary t......
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Ealy v. Mcgahen.
...supra, we are not concerned with the question of whether or not the original judgment was a default judgment. Northcutt v. King et al., 23 N. M. 515, at page 517, 169 P. 473. The only question of merit presented for our consideration in this case is whether or not, pursuant to section 105-8......
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Slade v. Slade
...years after the rendition of that judgment. On the facts of our case, the decisive authority is not Goldsworthy but Northcutt v. King, 23 N.M. 515, 169 P. 473 (1917). There the plaintiff sued in 1913 on a Colorado judgment obtained in 1905. The seven-year statute of limitations was raised a......
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Caseldine v. Johnson (In re Goldsworthy's Estate)
...and never has been, and the cause of action did not accrue in New Mexico, but in Missouri. What we said in the case of Northcutt v. King, 23 N.M. 515, 169 P. 473, 475, in so far as decisions of our own court are concerned, is more in point by way of analogy here than either the Van Arsdell ......