Southern Cal. Fruit Exch. v. Stamm.

• Decision Date: 23 August 1898
• Citation: Southern Cal. Fruit Exch. v. Stamm, 9 N.M. 361, 54 P. 345, 1898 NMSC 8 (N.M. 1898)
• Parties: SOUTHERN CALIFORNIA FRUIT EXCHANGEv.STAMM.
• Court: New Mexico Supreme Court

9 N.M. 361

54 P. 345

SOUTHERN CALIFORNIA FRUIT EXCHANGE

v.STAMM.

Supreme Court of the Territory of New Mexico.

Aug. 23, 1898.

Syllabus by the Court.

1.This court will not review alleged errors where exceptions were not taken out at the time and preserved.

2.An attachment is ancillary where a personal judgment is sought, but it is an original attachment where a judgment in rem only is sought.

3.The court has jurisdiction to render a judgment in rem where a levy of defendant's property has been made under a valid writ of attachment, and service by publication had as required by law, notwithstanding the return of the officer was not made until after judgment was taken.

4.A plea tendering no issue is frivolous, and may be stricken from the files on motion, and it is not error to ignore it.

5.Where the record on appeal does not show that a plea in abatement was not urged for hearing before the trial, it will be presumed to have been abandoned.

6.To render judgment for an amount in excess of plaintiff's claim is harmless error, where the judgment is in rem only, and the proceeds of the property levied upon and sold are insufficient to pay the amount actually due.

7.A remittitur of the excess in such a case is unnecessary.

Error to district court, Bernalillo county; before Justice N. B. Laughlin.

Action by Martin P. Stamm against the Southern California Fruit Exchange.Judgment for plaintiff.Defendant brings error.Affirmed.

A plea tendering no issue is frivolous and may be stricken from the files on motion, and it it not error to ignore it.

R. W. D. Bryan and Warren, Furgusson & Gillette, for plaintiff in error.

A. B. McMillan, for defendant in error.

McFIE, J.

On the 17th day of April, 1896, Martin P. Stamm, through his counsel, Alonzo B. McMillan, filed in the office of the clerk of the district court of Bernalillo county a declaration in a suit to recover the sum of $300 damages on account of the failure on the part of the Southern California Fruit Exchange, defendant in the court below, to deliver to him a car load of oranges alleged to have been purchased by him.At the same time the declaration was filed, an affidavit in attachment and attachment bond were also filed in the office of the clerk of the district court for Bernalillo county; the affidavit in attachment alleging that the defendant, the Southern California Fruit Exchange, was a corporation organized under the laws of California, and that its principal place of business was not within the territory of New Mexico, and that it had no designated agent within said territory upon whom process might be served in suits against it.On the day the declaration, affidavit, and bond were filed in said court, a writ of attachment and summons were issued by the clerk of the court.On the 20th day of April, 1896, a petition was filed in said court by the plaintiff for the purpose of securing the sale of a car load of oranges, which were alleged to be perishable property.The object of the petition is as follows: “The plaintiff represents to the court that, by virtue of a writ of attachment issued out of this court in the above cause, the sheriff of Bernalillo county has duly levied the said writ of attachment by seizing a car load of oranges, as the property of the defendant, in the city of Albuquerque; that the said property attached as aforesaid is of perishable nature, and liable to be lost unless the same is sold within a few days; and that it is to the interest of all parties to have the sale made at the earliest day possible.The plaintiff therefore prays the court for an order directing the said sheriff to sell the said property attached at an early day, and directing the manner of such sale.”This petition was sworn to.On the same day the court made the following order: “Upon reading the petition of the plaintiff, and hearing the evidence in regard thereto, the court finds that the property attached is a car load of oranges, that the said oranges are of a perishable nature, and that it is to the interest of all parties to have the same sold forthwith.It is therefore ordered that the said sheriff of Bernalillo county sell the property attached, in bulk, as aforesaid, at public auction, to the highest and best bidder, first giving three days' notice in a daily newspaper printed and published in the city of Albuquerque, county of Bernalillo, aforesaid.[Signed]N. C. Collier, Judge.”On the 10th day of October, 1896, proof of publication for service as required by law in the case of attachments upon the ground of non-residence was filed.On the 23d day of October, 1896, on motion of plaintiff's counsel, and during a regular term of said court, the defendant corporation was adjudicated to be in default; and on the 10th day of December, 1896, and during said regular term, testimony was heard on behalf of the plaintiff, and judgment was rendered against the defendant corporation for the sum of $337.25 and costs.The attachment was sustained by the court, and the sheriff was directed to turn over to the plaintiff the proceeds arising from the sale of the attached property, less the costs.The defendant did not at any time, either in person or by counsel, enter a general appearance in the cause until the judgment had been duly entered, the attachment sustained, and the proceeds of the sale of the attached property ordered paid to the plaintiff by the sheriff; but on the 5th day of October, R. W. D. Bryan entered a special appearance for the defendant, and moved to dismiss the cause for the reason that there had been no service of summons upon the defendant corporation.This motion was afterwards withdrawn, and on the 20th day of October, 1896, R. W. D. Bryan again appeared specially for the purpose of filing a plea, which is as follows: “And the said defendant, by its attorney, R. W. D. Bryan, enters special appearance, and for the purpose of this plea, and comes and defends,” etc., “and says that, before and at the time of the commencement of said action, it, the said Southern California Fruit Exchange, was, and from thence hitherto has been, and still is, a corporation organized and existing under the laws of the state of California, and that it, the said Southern California Fruit Exchange, was not found or served with process in the said county of Bernalillo, or in the said territory of New Mexico; and this it is ready to verify.”On the 15th day of January, 1897, the defendant appeared specially by counsel, and filed motion to set aside the judgment entered in the cause, on the ground of want of jurisdiction in the court to enter judgment, which said motion was overruled by the court on the 20th day of January, 1897.On the 21st day of January, 1897, the sheriff of Bernalillo county made his return, showing the sale of the property attached under the order of the court, and showing the disbursement of the proceeds thereof; also, publication of notice of said sale.On the 21st day of January, 1897, the sheriff filed his return, showing the levy of the writ of attachment, and seizure of the car load of oranges above referred to, on the 17th day of April, 1896; the said return of the sheriff being dated April 23, 1896.On the 6th day of August, 1897, writ of error was sued out of the supreme court in this case.

From the above statement of facts as shown by the record, it will be observed that there was no general appearance of the defendant corporation during the entire progress of this cause in the court below.No exceptions were taken to the default proceeding, nor to the judgment entered by the court at the time such judgment was taken, nor were any exceptions saved in the bill of exceptions; and this court will not consider errors alleged to have been committed in the trial of the cause, not excepted to in the trial court at the time the ruling was made.Laird v. Upton, 8 N. M. (Gild.) 409, 45 Pac. 1010;Territory v. Perea, 1 N. M. 627;Spiegelberg v. Mink, Id. 308;Com'rs of Sierra Co. v. County Com'rs Dona Ana Co., 5 N. M. (Gild.) 190, 21 Pac. 83;Territory v. Hicks, 6 N. M. (Gild.) 596, 30 Pac. 872;Territory v. O'Donnell, 4 N. M. (Gild.) 196, 12 Pac. 743;Territory v. Baker, 4 N. M. (Gild.) 238, 13 Pac. 30.

There is but one question, therefore, raised by this record for the consideration of this court, and that is the jurisdiction of the court to render the judgment in damages.It was stated in the argument by counsel for plaintiff in error that they did not question the power of the court to dispose of the property seized under the writ of attachment, nor of the proceeds thereof, but their contention was that the court had no jurisdiction to render judgment as to the amount of damages.This being a question that may be properly raised at any time during the progress of the cause, even in this court, we have examined this record with a view of determining the merits of this contention.This cause was brought under section 1927,Comp. Laws 1884, which reads as follows: “A creditor wishing to sue his debtor in attachment may place in the clerk's office of the district court of any county in this territory, a petition or other lawful statement of his cause of action, and shall also file an affidavit and bond, and thereupon such creditor may sue out an original attachment against the lands, tenements, goods, moneys, effects and credits of the debtor, in whosesoever hands they may be.”The petition, affidavit, and bond were undoubtedly filed under this provision of the statute, which fully authorizes the proceeding as an original attachment.The fact that a declaration was filed does not rob the proceeding of its efficacy as an action of attachment.Where the action of attachment is brought against a resident defendant, and where personal service is or may be had, it is not only an action in rem, but it is also an action in personam.But if an action of attachment is brought on account of the nonresidence of the...