Singleton v. Sanabrea

• Decision Date: 28 July 1931
• Docket Number: No. 3574.,3574.
• Citation: 35 N.M. 491,2 P.2d 119
• Parties: SINGLETONv.SANABREA et al.
• Court: New Mexico Supreme Court

35 N.M. 491

2 P.2d 119

SINGLETON

v.SANABREA et al.

No. 3574.

Supreme Court of New Mexico.

July 28, 1931.

Syllabus by the Court.

District judge may render default judgment at any place in state, though service was obtained by publication (Comp. St. 1929, §§ 105-801, 105-804).

A default judgment may be rendered by a judge of the district court at any place where he may be in this state, and this is so even though under section 105-804, 1929 Comp., in actions where the service of summons is by publication, the court must require proof to be made of the demand mentioned in the complaint.

Complaint duly verified is “sworn pleading,” and plaintiff may make requisite showing therein for publication of notice of pendency of cause (Comp. St. 1929, § 105-308).

A duly verified complaint is a “sworn pleading” within the contemplation of section 105-308, 1929 Comp., in which plaintiff may make the requisite showing for the publication of a notice of the pendency of a cause.

Affidavit stating that residence of defendant is unknown held to support jurisdiction on service by publication, without showing what efforts affiant made to ascertain such residence (Comp. St. 1929, § 105-308).

Under section 105-308, 1929 Comp., an affidavit stating the fact that the residence of defendant is unknown is sufficient to support jurisdiction on service by publication, without the necessity of showing what efforts affiant made to ascertain such residence.

Proceedings examined, and held that the showing was insufficient to show existence of grounds for opening or vacating the judgment.

Appeal from District Court, Lea County; Richardson, Judge.

Action by G. E. Singleton against Luz Sanabrea and others. Judgment was entered for plaintiff by default, and, from an order vacating the default judgment, plaintiff appeals.

Order vacating judgment reversed, and cause remanded, with directions.

Under section 105-308, 1929 Comp.St., an affidavit stating the fact that the residence of defendant is unknown is sufficient to support jurisdiction on service by publication, without the necessity of showing what efforts affiant made to ascertain such residence.

See, also, 292 P. 6.

G. A. Threlkeld, of Roswell, for appellant.

W. H. Patten, of Lovington, for appellees.

BICKLEY, C. J.

The plaintiff, appellant, brought and commenced this action in Lea county to quiet title to real estate situate in said county. Service of process upon appellee was by publication. The appellee, not answering, default judgment was rendered by the judge of the district court in Roswell, the county seat of Chaves county, against appellee and others, on February 14, 1929, the court requiring “proof to be made of the demand mentioned in the complaint,” as required by section 105-804, 1929 Comp. On June 13, 1929, appellee moved to set aside the judgment upon the ground of irregularities, relying upon section 105-846, 1929 Comp. The motion was supported by affidavits, and was accompanied by a tendered answer claiming a good defense to the action. The motion stated a ground for setting aside the judgment as follows: “That this action involves the title to lands and said cause was commenced in Lea County, the venue and County where the land involved is situated and no change of venue was ever asked although the cause was finally tried and determined in Chaves County and this Court therefore had no jurisdiction to hear and determine said cause.”

[1] Appellee is in error in asserting that the matter of jurisdiction of the court is involved. It is a matter of venue. Assuming, although not deciding, that if the appellee had made timely appearance and objection to a hearing of this, a nonjury case, on the ground that it could not be determined and judgment rendered in a county other than Lea, where the venue was laid, still such a principle would not avail appellee here. The following statement is made in Bowers on the Law of Waiver, §§ 379, 380:

“The county in which an action shall be tried may be agreed upon by the parties. Or if the county in which the action is brought is not the proper one for the trial thereof, the action may nevertheless be tried therein unless the defendant by proper objection demand that it be tried in the county prescribed by law. But the objection must be raised prior to trial or it will be deemed waived. And any conduct on the part of the defendant manifesting satisfaction with the venue until after the trial, or his abiding by it until the matter has proceeded to a hearing will be sufficient to constitute a waiver.”

“The venue of an action has always been a privilege which the defendant could exact or waive, even as to districts. The right of a defendant to be sued in that of his domicile may be waived, and is waived by his failure to object. ***”

See, also, Albuquerque & C. C. Co. v. Lermuseaux, 25 N. M. 686, 187 P. 560.

Section 105-801, 1929 Comp., provides: “Any judgment, or decree, except in cases where trial by jury is necessary, may be rendered by the judge of the district court at any place where he may be in this state, and the district courts, except for jury trials, are declared to be at all times in session for all purposes, including the naturalization of aliens.”

The district court had jurisdiction of the subject-matter, and we hold that a default judgment upon proper service, the defendant failing to answer the complaint, can be rendered by the judge of the district court at any place where he may be in this state. And this is so even though under section 105-804, in actions where the service of summons is by publication, the court must require proof to be made of the demand mentioned in the complaint.

[2] Our next inquiry, then, is as to whether the court had jurisdiction of the person of the defendant (appellee).

The verified complaint alleges: “The present place of residence and whereabouts of the defendant, Luz Sanabrea, is unknown to the plaintiff and cannot be discovered after diligent inquiry.”

One of the grounds of appellee's motion to set aside the judgment is that there is no separate affidavit setting forth the fact that residence of defendant was unknown, and that the “sworn pleading,” referred to in section 105-308 as a vehicle for showing that the residence of defendant is unknown, must be a sworn pleading filed after the suit was commenced, and further that the record does not show what diligence was used to ascertain the whereabouts of the defendant.

[3] We hold that a duly verified complaint is a sworn pleading within the contemplation of said section 105-308, in which plaintiff may make the requisite showing for the publication of a notice of the pendency of a cause. Appellee's objection that the record does not show what diligence was used as a basis for the declaration that the place of residence and whereabouts of the defendant is unknown, and therefore the notice should not have been published, is not well taken. See Bowers v. Brazell, 31 N. M. 316, 244 P. 893.

[4] It is next claimed by appellee, in support of his motion, that fraud was practiced in procuring the judgment, in that the allegation in the sworn complaint, that the place of residence of defendant was unknown, was knowingly false. That such a fraud is a ground, in a proper proceeding for vacating a judgment, is not doubted. See Owens v. Owens, 32 N. M. 445, 259 P. 822. Appellant does not seriously contend that a judgment may not be opened or set aside upon motion upon the grounds of extrinsic fraud as well as by separate and distinct action. The latter course was pursued in Owens v. Owens, supra, and the former in Kerr v. Southwest Fluorite Co., 35 N. M. -, 294 P. 324. Appellant insists, however, that, even where the procedure by motion to vacate is permissible, the motion should be treated as a complaint, and the pleadings, hearing, and evidence, should be treated as though the proceeding were an independent action to vacate the original judgment.

It is unnecessary to decide whether the alleged fraud of the plaintiff in making declarations of nonresidence or lack of knowledge of the residence of the defendant is an “irregularity.” If it should be so considered, it involves a fact to be established de hors the judgment roll, and whether the trial court committed error in setting aside the judgment, if perchance this is the ground upon which the motion to set aside was sustained.

The following are some of the rules governing proceedings of this character:

“Two issues arise on every application to open or vacate a judgment, namely, the existence of grounds for opening or vacating the judgment, and the existence of a meritorious defense, or cause...