Ortega v. Vigil.

• Decision Date: 17 June 1916
• Docket Number: No. 1861.,1861.
• Citation: 158 P. 487,22 N.M. 18
• Parties: ORTEGA ET AL.v.VIGIL.
• Court: New Mexico Supreme Court

22 N.M. 18

158 P. 487

ORTEGA ET AL.

v.VIGIL.

No. 1861.

Supreme Court of New Mexico.

June 17, 1916.

Syllabus by the Court.

Section 4230, Code 1915, which provides that, “Judgments may be set aside for irregularity, on motion filed at any time within one year after the rendition thereof,” applies to judgments rendered out of term time upon default.

An answer filed by a defendant, after the time to file the same has expired, and before judgment of default has been entered by the court, is not a nullity, and so long as answer remains on file and undisposed of, plaintiff is not entitled to a judgment by default, and the rendition of such judgment constitutes an irregularity for which the judgment rendered may be set aside upon motion filed at any time within one year from the date of the rendition of such judgment.

Failure of a defendant to serve a copy of an answer filed by him upon plaintiff's counsel does not warrant the rendition of a default judgment against such defendant.

Appeal from District Court, Taos County; Mechem, Judge.

Action by Juana Maria Ortega and others against Trinidad M. Vigil. From judgment for defendant, plaintiffs appeal. Affirmed.

Under Code 1915, § 4230, a default improperly entered while an answer is undisposed of may be set aside on motion filed within a year.

Catron & Catron, of Santa Fé, for appellants.

Renehan & Wright, of Santa Fé, for appellee.

ROBERTS, C. J.

This appeal raises three questions which may be stated as follows: First, can a default judgment be set aside for irregularity, on motion filed at any time within one year after its rendition? Second, can a default judgment be regularly rendered where defendant has failed to appear and plead within the 20 days allowed by statute, service having been had upon him within the county where the suit is pending, but such defendant has filed answer after the expiration of 20 days and before the default judgment has been rendered. And, third, can a default judgment be rendered against a defendant, assuming that he may plead after the expiration of the statutory time, because of his failure to serve a copy of such pleading upon the plaintiff or his attorney.

[1] In this case the trial court set aside the default judgment, upon motion filed five months after it was rendered, upon the ground of irregularity. Appellant contends that section 4227, Code 1915, which provides:

“Any judgment rendered in any court of this state, out of term time, upon default, may be set aside by the judge upon motion filed within sixty days of the date of the entry of such judgment, upon good cause shown to the judge or court in which such judgment is rendered”

--is exclusive in so far as default judgments are concerned. This statute was enacted March 2, 1905. At that time the act of March 18, 1897 (section 4230, Code 1915), which reads as follows:

“Judgments may be set aside for irregularity, on motion filed at any time within one year after the rendition thereof”

--was in full force and effect. Both statutes are still in force.

We cannot agree with appellant's contention. The object of the Legislature in the enactment of section 4227, supra, was to provide for the setting aside of default judgments “upon good cause shown,” and this “good cause” may consist of many facts and circumstances which would not amount to an “irregularity.” Section 4230 made ample provision for the setting aside of judgments for irregularities, but affords no relief from a default judgment where good cause may be shown for its vacation, other than an irregularity. Hence we conclude that a default judgment may be set aside for irregularity, on motion filed at any time within one year after its rendition.

[2] This, then leads us to the inquiry as to whether the judgment in this case was regularly rendered upon default where defendant had filed an answer in this case after his time to file the same had expired, but before such default judgment was rendered. Two days before the answer was filed, and after the statutory time to file the same had expired, plaintiff procured from the clerk a certificate of nonappearance, but this certificate has nothing to do with the merits of the case, as it was only evidence of the fact that at the time it was issued no appearance had been entered by defendant. Judgment of default was not taken until three months thereafter. Four days after the certificate of nonappearance was signed by the clerk defendant's answer was filed, and such answer was on file and undisposed of at the time the default judgment was taken. The right to the default judgment herein, if such right existed, was by virtue of the provisions of the second subdivision of section 4188, which, in so far as pertinent, reads as follows:

“In other actions, if no answer has been filed with the clerk of the court within the time specified in the summons or such further time as may have been granted, the court or judge, upon application of the plaintiff, must enter the default of the defendant and render judgment.”

This section of our Code is very similar to section 585 of the California Code of Civil Procedure, and was evidently taken therefrom. Subdivision 2 of section 585, Cal. Code, differs from the above only in so far as it requires the clerk to enter the default of the defendant, and authorizes the plaintiff to apply to the court at any subsequent term for the relief demanded in the complaint. The Supreme Court of California has frequently construed the above statute, and uniformly has held that an answer filed without leave of court after the time for answering has expired, but before the default has been entered, is not a nullity, but is, at most, an irregularity; that such an answer cannot be disregarded or treated as a nullity, so long as it remains on file; that plaintiff's remedy is by a motion to strike the answer from the files.

In the case of Bowers v. Dickerson, 18 Cal. 420, the plaintiff moved to strike out an answer and demurrer because filed after the return day, and for...