Pickering Et Ux. v. Palmer

• Decision Date: 10 January 1914
• Citation: 138 P. 198,18 N.M. 473
• Parties: PICKERING ET UX.v.PALMER ET AL.
• Court: New Mexico Supreme Court

18 N.M. 473

138 P. 198

PICKERING ET UX.

v.PALMER ET AL.

Supreme Court of New Mexico.

Jan. 10, 1914.

Syllabus by the Court.

A judgment rendered by a justice of the peace, before the return day of the summons, is void as being without jurisdiction.

A person against whom a justice of the peace has rendered a judgment void for want of jurisdiction is not bound to appeal or remove the same by writ of certiorari, even though he have actual notice of the existence of the judgment.

In this state where a justice of the peace has no power to set aside his judgments or grant a new trial, and where upon appeal or certiorari to the district court the cause is triable de novo only, one against whom a void judgment has been rendered by a justice of the peace is not, though with actual notice thereof, guilty of laches and negligence sufficient to bar his right to an equitable remedy against such judgment, because he fails to appeal or sue out a writ of certiorari.

An action for damages for trespass under a void judgment and execution issued thereunder is not such a plain, speedy, and adequate remedy at law as will bar an action to enjoin the enforcement of the judgment.

Appeal from District Court, San Juan County; E. C. Abbott, Judge.

Action by D. H. Pickering and wife against J. M. Palmer, administrator, etc., and another. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

The complaint states that the deceased Scott sued plaintiffs in the justice of the peace court for precinct No. 2, San Juan county, for debt in the sum of $100; that the summons in the action was served on them on the 19th day of November, 1910, commanding them to appear on the 24th of the same month; that on the 23d of November, 1910, the said Scott wrongfully and unlawfully induced the justice to hear the evidence in the case and to render judgment therein in the sum of $100 and costs of suit against the appellants; that on the 25th day of July, 1911, an execution was issued, based on the said judgment, and placed in the hands of the sheriff of San Juan county; and that the sheriff on the 1st day of August, 1911, took and levied upon several head of cattle of appellants, and unless restrained will sell said cattle. An injunction was prayed. Appellees demurred, on the ground that the complaint failed to state a cause of action because on its face it appears that the plaintiffs had, in the action therein referred to, a plain, speedy, and adequate remedy at law by appeal from said judgment or by writ of certiorari. The demurrer being sustained by the court, the plaintiffs elected to stand on their complaint and refused to further plead, and judgment was rendered dismissing the action.

That a person against whom a void judgment has been rendered by a justice of the peace fails to appeal or sue out a writ of certiorari does not render him guilty of laches so as to bar his right to equitable relief against the judgment.

Edwards & Martin and Frank A. Burdick, all of Farmington, for appellants.

J. M. Palmer, of Farmington, for appellees.

MECHEM, District Judge (after stating the facts as above).

[1] The judgment was void because there was no service of appellants to appear on the day it was rendered. The justice had no jurisdiction to render the judgment. It is not a question whether the appellants had proper notice, as in the case cited by counsel (Kerr v. Murphy, 19 S. D. 184, 102 N. W. 687, 69 L. R. A. 499, 8 Ann. Cas. 1138), but whether they had any notice at all. In the case cited the defendant was given but two days' notice, when the statute required three days' notice. The court held that “the police justice considered the return before him and erroneously decided that the plaintiff in the action had had proper notice.” It was an irregularity in a preliminary proceeding, not an entire want of the preliminary proceeding. The distinction is drawn between “a want of jurisdiction and a defect in obtaining jurisdiction” (1 Freeman on Judgments, § 126), between “a case where there is no service whatever and one which is simply defective or irregular” (Id.). As was said in Leonard v. Sparks, 117 Mo. 103, 22 S. W. 899, 38 Am. St. Rep. 646, the defendant in the latter case has his day in court to object to the process. The test is in such cases whether the court had a right to decide, or whether, having the right to decide, its judgment was merely erroneous. In this case the justice of the peace had no right to decide.

[2][3] While the complaint was demurred to because it showed on its face that the appellants had a remedy at law by appeal or certiorari, yet at the time of the bringing of this action their time for availing themselves of those remedies had long since passed. Before they will be denied the relief they ask, they must have lost the right to those legal remedies by their laches or negligence. Assuming that the appellants had actual knowledge that the judgment had been given against them, were they legally...