State Ex Rel. Heron v. Dist. Court of First Judicial Dist. Within

• Decision Date: 12 August 1942
• Docket Number: No. 4717.,4717.
• Citation: 128 P.2d 454,46 N.M. 296
• Parties: STATE ex rel. HERONv.DISTRICT COURT OF FIRST JUDICIAL DIST. WITHIN AND FOR RIO ARRIBA COUNTY et al.
• Court: New Mexico Supreme Court

46 N.M. 296

128 P.2d 454

STATE ex rel. HERON

v.DISTRICT COURT OF FIRST JUDICIAL DIST. WITHIN AND FOR RIO ARRIBA COUNTY et al.

No. 4717.

Supreme Court of New Mexico.

Aug. 12, 1942.

Original prohibition proceeding by the State of New Mexico, on the relation of Kenneth A. Heron, against the District Court of the First Judicial District of the State of New Mexico within and for the county of Rio Arriba, and another, to restrain the respondents from proceeding with a pending case.

Writ of prohibition denied.

Questions relating to form, execution, amount, and approval of appeal bond on appeal from default judgment in forcible entry and detainer proceedings in justice court, involved matters within jurisdiction of district court and furnished no ground for issuance of writ of prohibition restraining district court from proceeding with the appeal. Comp.St.1929, §§ 79-501, 79-508; Const. art. 6, §§ 13, 27.

Kenneth A. Heron, of Chama, for petitioner.

Reed Holloman, of Santa Fe, for respondent.

SADLER, Justice.

The petitioner seeks prohibition against the district court of the first judicial district and the judge thereof. As a basis for the relief prayed he alleges the respondents as such district court and judge, respectively, are about to proceed in the trial of a forcible entry and detainer action pretendedly removed into the district court on appeal from a judgment of the justice of the peace of precinct No. 17 of Rio Arriba County; that for reasons set forth in his petition the respondents are without jurisdiction and should be restrained. The particular action mentioned bears Docket No. 3818 on the civil docket of the district court of Rio Arriba County. Petitioner herein appears as plaintiff and Hayden and D. H. Gaylor as defendants.

Upon the filing and presentation of the petition herein, we directed service on respondents of an order to show cause why an alternative writ should not be issued as prayed. The matter is before us on the rule to show cause. The parties have agreed, however, that we may consider the case as if on final hearing and may direct issuance of a permanent writ at this time if we conclude the district court is without jurisdiction to proceed. Since the right to prohibition may rest upon no other conclusion than a want of jurisdiction in the district court, its presence is fatal to the relief sought.

The facts are not in dispute. The petitioner as plaintiff before the justice of the peace of precinct No. 17 of Rio Arriba County sued Hayden Gaylor and D. H. Gaylor in forcible entry and detainer and recovered judgment by default. The judgment was one of ouster and for damages in the sum of $150 plus $2 per day for each day the premises were detained after date of judgment. Thereupon and on the date of the judgment, the defendants prayed and were allowed an appeal to the district court with appeal bond fixed at the penal sum of $700. Having tendered a good and sufficient appeal bond which the justice of the peace declined to approve, the defendants made timely application before the district clerk of Rio Arriba County to secure an appeal under the provisions of 1929 Comp., § 79-508, by filing the statutory affidavit therefor. The district clerk required bond in accordance with the statute and issued the writ therein called for commanding the justice of the peace to transmit the original papers and a complete transcript of all proceedings in the case to the district court. The latter complied with the mandate of the writ and the cause was docketed in the district court as an appeal entitled as already indicated.

It is conceded by the parties that the proceedings related as having taken place before the district clerk of Rio Arriba County were conducted before Iola Yashvin as deputy district clerk of said county at the office occupied by her as district clerk of Santa Fe County in the county court house in the City of Santa Fe in Santa Fe County, New Mexico. Wherefore, the petitioner says the district court of Rio Arriba County is without jurisdiction of this appeal.

The petitioner also points out that the appeal bond filed with the district clerk as aforesaid is fatally defective in the several particulars noted below, to-wit:

(a) It pretends to be an undertaking on appeal to a court having no jurisdiction by reciting by way of inducement that “defendants are aggrieved by said judgment so rendered and have appealed said cause to the District Clerk of said County and State”.

(b) It is not conditioned as bonds on appeal from judgments in forcible entry and detainer are required to be conditioned in that the obligors limit their undertaking to the payment of “any amount charged against them” within the penalty of the bond, thus failing to contain a condition that defendants will “comply with the judgment of the district court”.

(c) It fails to indicate or describe the judgment appealed from.

(d) Its execution is not acknowledged.

(e) It is not in an amount sufficient to stay the judgment of the justice of the peace.

(f) It fails to bear the approval of the district clerk of Rio Arriba County in that, overlooking the nullity of the official acts performed outside Rio Arriba County by Iola Yashvin as deputy district clerk of Rio Arriba County, the approval of a bond is a judicial or quasi-judicial act and could not have been performed by a deputy even though within such county.

Wherefore, says the petitioner, the district court is without jurisdiction to proceed.

Finally, and as another and additional ground for issuance of the writ, the petitioner asserts that where a defendant, having been regularly summoned to appear and answer a complaint in forcible entry and detainer, fails to appear and file written answer and permits default to be entered against him, there is no issue for trial, the allegations of the complaint must be accepted as true and the district court is without jurisdiction to do other than proceed as on default in accordance with 1929 Comp. § 79-401, and render judgment for the plaintiff.

[1][2] As to the objection last urged to jurisdiction in the district court, viz., that failure to appear or personal appearance alone without a written answer puts defendant in default and denies the district court jurisdiction to entertain the appeal, it is perhaps enough to point out that the contention already has been ruled against the petitioner in State ex rel. Heron v. District Court of First Judicial District, 46 N.M. 290. 128 P.2d 451, this day decided. The correctness of the conclusion there drawn is emphasized by the observation that, if as petitioner agrees, the justice of the peace would have jurisdiction to proceed under 1929 Comp., § 79-401, and “hear the proofs of the party present, and render judgment thereon”, as on default, then the district court, invested with the same jurisdiction, could do likewise and, of course, could render whatever judgment the proofs called for, conceivably a judgment against the plaintiff. The plaintiff's right, if he possesses the right claimed, to have such proof presented in defendant's absence, does not touch the district court's jurisdiction to hear it with defendant present and participating even if erroneously permitted to appear on his appeal from a default judgment rendered by the justice of the peace. That an appeal does lie from a default judgment is abundantly sustained by the opinion in State ex rel. Heron v. District Court of First Judicial District, supra, and cases there cited.

As to the remaining objections interposed by petitioner to jurisdiction in the district court, some present rather intriguing questions. For instance, it is said the bond fails to contain a condition that defendant will “comply with the judgment of the district court”, being conditioned instead merely to pay “any amount charged against them”. In urging the missing condition as an essential one in appeal bonds of the kind involved, the petitioner does not claim it is required by any statute which may govern the form of the bond on such appeals, viz., 1929 Comp., §§ 54-115, 54-116, touching appeals in forcible entry and detainer; § 79-501, governing justice of the peace appeals in the ordinary form; or, § 79-508, relating to appeals sued out before the district clerk. It is rather to be found set forth in 1929 Comp., § 105-2513, as a condition to be incorporated in the form of supersedeas bond prescribed on appeals to the supreme court from...