Senescal v. Bolton.

• Decision Date: 02 October 1893
• Citation: 7 N.M. 351,34 P. 446
• Parties: SENESCAL et al.v.BOLTON.
• Court: New Mexico Supreme Court

7 N.M. 351

34 P. 446

SENESCAL et al.

v.BOLTON.

Supreme Court of the Territory of New Mexico.

Oct. 2, 1893.

Error to district court, San Miguel county; James O'Brien, Judge.

Assumpsit by James Bolton against Antonio A. Senescal, Deluvina Desmarias, Charles Blanchard, and Louisa D. Bernard, administrators, etc., of Joab M. Bernard, deceased. There was a judgment in plaintiff's favor, and Charles Blanchard brings error. Reversed.

In a suit in assumpsit against Charles Blanchard as administrator, and Louisa D. Bernard as administratrix, of one Joab M. Bernard, deceased, and others, on two certain promissory notes, made and executed by the intestate and the others, where the sheriff made the following return of service of process: “I further certify that I served the within summons on Charles Blanchard, at Las Vegas, New Mexico, by then and there delivering him a true copy of the original summons; and I further certify that I served the within summons on Mrs. Louisa D. Bernard, at Las Vegas, in my said county of San Miguel, on the twenty-seventh day of March, 1891, by then and there delivering Charles Blanchard a true and certified copy of said original summons, he then and there accepting service for the said Louisa D. Bernard, one of the administrators of J. M. Bernard, deceased,”-Held: Though the wording is ambiguous, as the whole certificate is one sentence, it may be fairly inferred that both services were made at the same time, and therefore gave the court jurisdiction of the person of the plaintiff in error.

Frank Springer, for plaintiff in error.

J. D. W. Veeder, for defendant in error.

SEEDS, J.

This was an action in assumpsit, brought by the defendant in error, James Bolton, against Senescal and two others upon a note signed by them, and against Charles Blanchard and Louisa D. Bernard, as administrators of the goods and chattels of one Joab M. Bernard, deceased, who was a joint maker of the note sued upon. The two administrators made default, and judgment was taken against them absolutely, so that execution would be levied against their individual goods, instead of those of the deceased, Joab M. Bernard. The administrator Charles Blanchard sues out his writ of error to this court, and, among others, assigns as causes of error the following: “(1) It does not appear from the record that Charles Blanchard was ever served with summons in this case. (2) That by said record and declaration therein contained no cause of action appears or was alleged against the said Charles Blanchard, and the said court therefore without jurisdiction either as to the person or subject-matter, nevertheless said court rendered judgment by default against the said Charles Blanchard absolutely. (3) That although it appears from the declaration that the said action was brought against the said Blanchard solely in his capacity as administrator, and it does not appear that he is in any other way liable, yet the said judgment does not provide that the amount adjudged shall be levied out of the goods of Joab M. Bernard, if so much there be in the hands of the administrators to be administered, but adjudges the said amount absolutely against the said Blanchard and Louisa D. Bernard, administrators, as aforesaid, so that the same may be levied out of their own goods.” These assignments cover the questions which we feel called upon to decide in the case.

As to the first assignment, the following is the return of the sheriff as to his services upon the plaintiff in error and his coadministrator: “I further certify that I served the within summons on Charles Blanchard, at Las Vegas, N. M., by then and there delivering him a true copy of the original summons; and I further certify that I served the within summons on Mrs. Louisa D. Bernard, at Las Vegas, in my said county of San Miguel, on the 27th day of March, 1891, by then and there delivering Charles Blanchard a true and certified copy of said original summons, he then and there accepting service for the said Louisa D. Bernard, one of the administrators of J. M. Bernard, deceased.” The contention is that this return fails to show a service upon Blanchard five days before the term of court, as the date, 27th day of March, 1891, has reference...