State ex rel. Appelby v. Dist. Court of Fifth Judicial Dist. , 4672.

• Court: New Mexico Supreme Court
• Writing for the Court: SADLER, Justice.
• Citation: State ex rel. Appelby v. Dist. Court of Fifth Judicial Dist. , 46 N.M. 376, 129 P.2d 338, 1942 NMSC 46 (N.M. 1942)
• Decision Date: 18 September 1942
• Docket Number: No. 4672.,4672.
• Parties: STATE ex rel. APPELBYv.DISTRICT COURT OF FIFTH JUDICIAL DISTRICT FOR CHAVES COUNTY et al.

46 N.M. 376

129 P.2d 338

STATE ex rel. APPELBY

v.DISTRICT COURT OF FIFTH JUDICIAL DISTRICT FOR CHAVES COUNTY et al.

No. 4672.

Supreme Court of New Mexico.

Sept. 18, 1942.

Original prohibition proceeding by the State of New Mexico on the relation of P. W. Appelby against the District Court of the Fifth Judicial District of the State of New Mexico, and James B. McGhee, District Judge.

Writ discharged.

An action between nonresidents to recover damages for wrongful death occasioned in an automobile accident was “transitory” and could be brought and tried in any county in the state notwithstanding the wrongful act complained of may have been criminal in character. Comp.St.1929, §§ 36-104, 147-101, subds. 1, 2, 6; Laws 1931, c. 127, §§ 1, 2.

Neal & Girand, of Hobbs, for relator.

Atwood & Malone, of Roswell, for respondent.

SADLER, Justice.

The question for decision is whether prohibition will lie to restrain the district court of a county other than that in which the accident occurred from further proceeding in an action by one nonresident of New Mexico against another nonresident, served through the secretary of state pursuant to L.1931, c. 127, to recover damages under 1929 Comp., § 36-104, for wrongful death occasioned in an automobile collision.

The particular action which it is sought to stop by prohibition is one entitled Mary Rice Tom as Temporary Administratrix of the Estate of J. D. Tom, as Plaintiff, deceased, v. P. W. Appelby, as Defendant, numbered 10798 on the civil docket of the district court of Chaves County. The plaintiff claims damages for the alleged wrongful death of the decedent suffered in a collision between his automobile and defendant's truck in Lea County, New Mexico. The complaint alleges that defendant's truck was operated in an unlawful manner, to-wit, on the wrong side of the highway. The defendant appeared specially to object to jurisdiction of the cause in the district court of Chaves County. He urged that both parties being nonresidents of New Mexico and the accident having occurred in Lea County, venue should have been laid in that county. The trial court announced that it would overrule the objection to its jurisdiction and proceed to try the cause. Thereupon, the relator sought prohibition here and was awarded an alternative writ.

Section 36-104, the statute authorizing the action, makes no provision as to venue. L.1931, c. 127, constituting the secretary of state agent for service on nonresident defendants in an action for damages growing out of the operation in New Mexico of a nonresident's automobile provides in section 2 that the plaintiff shall file a verified complaint “in one of the district courts of the State” showing a cause of action, etc. This merely is legislative recognition of the general rule governing under the venue statute where a nonresident is defendant. Hence, we are turned back to a consideration of the provisions of this statute on the question of venue. It is 1929 Comp., § 147-101 and so far as material reads:

“Civil actions in district courts. All civil actions commenced in the district courts shall be brought and shall be commenced in counties as follows, and not otherwise:

“First. 1st, all transitory actions shall be brought in the county where either the plaintiff or defendant or some one of them, in case there be more than one of either, resides; 2nd, or in the county where the contract sued on was made or is to be performed, or where the cause of action originated or indebtedness sued on was incurred; 3d, or in any county in which the defendant or either of them may be found in the judicial district where the defendant resides.

“Second. When the defendant has rendered himself liable to a civil action by any criminal act, suit may be instituted against such defendant in the county in which the offense was committed, or in which the defendant may be found, or in the county where the plaintiff resides.

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“Sixth. Suits may be brought against transient persons or non-residents in any county of this state.”

In the face of defendant's admitted non-residence and the plain language of § 147-101, subd. 6 reading, “suits may be brought against transient persons or non-residents in any county of this state”, the relator's position may be sustained only by a showing that the district court lacks jurisdiction of the subject matter. This he seeks to do through the contention that since the wrong resulting in decedent's death was a criminal act, viz., driving on the wrong side of the road, an action to recover damages therefor is rendered local under the provisions of § 147-101, subd. 2.

Noticing that under sub-paragraph 1 of said section all transitory actions may be brought in the county where the plaintiff or the defendant resides, or where the cause of action originates, the relator admits that any action in tort for the recovery of personal damages, whether the liability was occasioned by negligence or by a criminal act, “in the larger sense of the word, might be termed a transitory action in the absence of statute. It was doubtless for this reason”, continues the relator, that “the legislature provided that where a criminal act was the basis of such an...