State Ex Rel. Stanley v. Lujan

• Citation: 42 N.M. 291,77 P.2d 178
• Decision Date: 01 March 1938
• Docket Number: No. 4369.,4369.
• Parties: STATE ex rel. STANLEY et al.v.LUJAN, Judge.
• Court: Supreme Court of New Mexico

42 N.M. 291

77 P.2d 178

STATE ex rel. STANLEY et al.

v.LUJAN, Judge.

No. 4369.

Supreme Court of New Mexico.

March 1, 1938.

Original proceeding in prohibition by the State of New Mexico, on the relation of H. E. Stanley and another, against Eugene D. Lujan, Judge of the Seventh Judicial District Court and the Seventh Judicial District Court in and for Sierra County, N. M., to prohibit the defendant from enforcing an order requiring relators to turn over certain property to a receiver.

Alternative writ theretofore issued discharged.

The service of an order directing strangers to proceeding, in which a receiver had been appointed, to turn over property which was in their possession, under claim of ownership prior to appointment of receiver, to the receiver, or show cause within three days why they should not comply therewith, did not confer jurisdiction over the persons of the claimants. Comp.St.1929, § 105-607.

E. L. Medler, of Hot Springs, and W. C. Whatley, of Las Cruces, for relators.

J. C. Gilbert, of Hot Springs, for respondent.

PER CURIAM.

In the case of W. A. Cronin and H. L. Carter, plaintiffs, v. L. E. Shoup, W. H. Duncan, Michael P. Fominyh, and First National Bank, in Albuquerque, defendants, pending in the district court of the Seventh judicial district of the state of New Mexico within and for the county of Sierra, No. 2819, the court appointed J. C. Gilbert receiver, and later issued a turnover order directed to H. E. Stanley and R. A. Tipton, commanding them to deliver to said receiver listed personal property consisting of mining tools and equipment, or, if not in their possession, to disclose to said receiver the whereabouts of said property, or show cause within three days why they should not comply with said order. The order was personally served in Sierra county.

The said Stanley and Tipton, as relators, here seek to prohibit the Hon. Eugene D. Lujan, judge of the Seventh judicial district court, from enforcing said order. Relators maintain that respondent has no jurisdiction in said cause No. 2819 of the property involved, the possession of which it is admitted relators had under claim of ownership prior to the appointment of the receiver, nor of relators, since they are not parties to said cause.

[1] Relators also urge that the complaint in cause No. 2819 fails to state a cause of action entitling the plaintiffs to equitable relief or the appointment of a receiver. We held in effect in State v. Medler, 17 N.M. 644, 131 P. 976, Ann. Cas.1915B, 1141, and in State v. District Court of Eighth Judicial District, 38 N.M. 451, 34 P.2d 1098, 1099, that if a court proceeds upon a complaint which does not state a cause of action, it is error reviewable upon appeal or writ of error, and not by prohibition. In the last-cited case we said: “It might be convenient, in this case as in many others, to stop proceedings as soon as it appears that there is an irremedial defect in the cause of action. Such is not the policy of our law. Such a system might develop delays and other inconveniences offsetting entirely the advantages often suggested for it.”

See Vukovich v. St. Louis, Rocky Mt. & Pacific Co., 40 N.M. 374, 60 P.2d 356, where this cause was again before us on appeal. Whether a complaint for the appointment of a receiver where the authority of the receiver is questioned by third parties is an exception to the rule we find it unnecessary to decide.

[2][3] Relators strenuously urge that as strangers to cause No. 2819, in possession of property the title to which is admittedly in dispute, they are entitled to due process- that they should be made parties to cause No. 2819 in the regular way, 1929 N.M. Comp.St.Anno., § 105-607, or the receiver should proceed against them by suit in the ordinary manner, and that in either case the time allowed for answer is fixed by statute.

We said in Parsons Mining Co. v. McClure, 17 N.M. 694, 133 P. 1063, 1069, 47 L.R.A.,N.S., 744: “The...