State Ex Rel. Truitt v. Dist. Court of Ninth Judicial Dist.

• Decision Date: 21 November 1939
• Docket Number: No. 4489.,4489.
• Citation: 44 N.M. 16,96 P.2d 710
• Parties: STATE ex rel. TRUITTv.DISTRICT COURT OF NINTH JUDICIAL DIST., CURRY COUNTY, et al.
• Court: New Mexico Supreme Court

44 N.M. 16

96 P.2d 710

STATE ex rel. TRUITT

v.DISTRICT COURT OF NINTH JUDICIAL DIST., CURRY COUNTY, et al.

No. 4489.

Supreme Court of New Mexico.

Nov. 21, 1939.

Original proceeding by the State, on the relation of A. H. Truitt, for a writ of prohibition to prevent the District Court of the Ninth Judicial District, Curry County, and Harry L. Patton, Judge thereof, from trying on the merits a civil action pending against relator. On respondent's demurrer to the petition.

Demurrer overruled, and writ made permanent.

A writ of prohibition will be granted to prevent court from trying on merits action against nonresident defendant, not personally served with summons in state for reformation of sublease, as against contention that relator has plain and adequate remedy by appeal. Comp.St.1929, §§ 105-308, 105-310, 105-312.

Don G. McCormick, of Hobbs, and Richard E. Manson, of Santa Fe, for petitioner.

James A. Hall, of Clovis, for respondent.

BRICE, Justice.

This original action was instituted by the filing of a petition in this court, in which it is in substance charged that the district court of Curry County will, unless prevented from so doing by a writ of prohibition issued by order of this court, try upon its merits a certain civil action therein pending, entitled “C. R. Anthony, Inc., a corporation, plaintiff, v. A. H. Truitt, defendant,” and numbered 6024 on the docket of that court; though without jurisdiction of the person of the relator (defendant therein), in that personal service of a summons has not been made in New Mexico upon the relator, who is a resident of another state.

The respondent demurred to the petition upon several grounds, the principal one being that the suit is a proceeding in rem, or quasi in rem, and the district court of Curry County has jurisdiction of the res, and it is immaterial that it has not jurisdiction of the person of the relator.

[1] The defendant was served with process by publication and by the delivery of a copy of the petition and notice of suit, as provided by Secs. 105-308, 105-310 and 105-312, Sts.1929, the parts of which, material to a decision of this proceeding, are as follows: “When any plaintiff, his agent or attorney in any civil suit pending or hereafter commenced in any court of record, shall file a sworn pleading or affidavit showing that any defendant resides or has gone out of the state, *** it shall be the duty of the clerk of said court to publish a notice of the pendency of the said cause in some newspaper published in the said county where the cause may be pending; said notice shall contain the names of the plaintiff and defendant to the cause, *** also the name of the court in which said cause is pending, and a statement of the general objects of the action, shall show the name of plaintiff's attorney, with his office or post office address, and shall notify the defendant or defendants that unless they enter their appearance in said cause on or before the day named in said notice judgment will be rendered in said cause against them by default. Said notice shall be signed by said clerk. The publication of said notice shall be proved by the affidavit of the publisher, manager or agent of said newspaper, and the same shall be taken and considered as sufficient notice of summons and valid in law, and the plaintiff thereupon may prosecute his said cause to a final judgment under the same.”

Sec. 105-308.

“When the residence of the defendant in the cases mentioned in the preceding section is known to the affiant, the same shall be stated in the affidavit, and if such residence is not known, that fact shall be stated. When the residence of the defendant is known, the plaintiff, his agent or attorney shall forthwith deposit a copy of the summons and complaint in the post office, postage prepaid, directed to the defendant at his place of residence.” Sec. 105-310.

“Personal service of a copy of the summons and complaint out of the state shall be equivalent to publication and deposit in the post office as provided for by sections 4095 (105-308) and 4096 (105-310), New Mexico Statutes, Annotated (Codification) of 1915, and acts amendatory thereof. The defendant so served shall be required to appear on or before thirty days from the date of service. Return of such service shall be made by affidavit of the person making same.” Sec. 105-312.

No specific provision is made in the above Statutes for constructive service of process in any particular class of actions, but the statutes are general, and on their face applicable to all cases in which personal service cannot be obtained. Such service is not due process of law in strictly personal actions (Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565); but it applies to all actions in which personal service is not an essential to due process of law, where suits may be instituted under recognized principles of law.

The Supreme Court of the United States, in construing a similar statute of the State of Texas, said: “It is true there is no statute of Texas specially authorizing a suit against a nonresident to enforce an equitable lien for purchase money, but article 1230 of the Code of Texas, hereinafter cited, contains a general provision for the institution of suits against absent and nonresident defendants, and lays down a method of procedure applicable to all such cases. Obviously this article has no application to suits in personam ***. The article must then be restricted to actions in rem; but to what class of actions, since none is mentioned specially in the article? We are bound to give it some effect. We cannot treat it as wholly nugatory, and as it is impossible to say that it contemplates a procedure in one class of cases and not in another, we think the only reasonable construction is to hold that it applies to all cases where, under recognized principles of law, suits may be instituted against nonresident defendants.” Roller v. Holly et al., 176 U.S. 398, 20 S.Ct. 410, 412, 44 L.Ed. 520.

The essential facts alleged in the petition are as follows: The relator had leased certain real estate in Clovis, Curry County, New Mexico, on which is situated a building suitable for use as a department store. (Each reference to plaintiff means plaintiff below.) Relator proposed to transfer his lease to plaintiff for a bonus of $500, which offer plaintiff accepted. The relator stated he did not have in his possession a copy of the lease, but would sublease the property to plaintiff upon the same terms as those upon which he (relator) held the property.

The lease from the owner of the property to relator provided for the payment of a rental of $200 per month for the first five years and $250 per month for the second five years, and

“The party of the second part agrees to install at his own expense before September 1, 1938, a new modern store front complete, said store front shall become a part of the building and shall become the property of the party of the first part at the termination of this lease. ***

“At the expiration of the term of this lease, the party of the second part shall have an option to extend this lease for an additional period of five years at a rental equal to the best bona fide offer of rental received at such time for such period by the party of the first part, it being the intention that the party of the second part shall have the right of refusal of a lease for such additional period of five years.

“This lease may at the option of the party of the second part be assigned by him or the premises may be sublet by him provided however that no sub-lease shall be made unless the same covers the entire premises.”

Relator falsely represented to plaintiff that his lease from the owner provided for the payment of $300 per month rental for the first five years and $350 per month for the second five years; and did not advise him that a provision was made in the lease for a further term after the expiration of ten years.

The sub-lease which relator prepared and which plaintiff accepted, provided for the payment of $300 per month for the first five years and $350 per month for the second five years, and made no provision for a longer term, following relator's false representations regarding the terms of his lease.

It is charged that through the false representations and fraud of relator, the plaintiff was induced to accept the sub-lease as prepared by relator. Before the plaintiff knew of the fraud practiced upon it by relator, it had spent a large sum of money in building a new front to the building, as required by the terms of the original and sub-lease, and had installed a department store in the building at an investment of $50,000.

Upon these facts, plaintiff, by its action in the Curry County district court, asks that “the sub-lease contract be reformed and made to speak the truth in that same be made to provide that plaintiff pay for the first five years only the sum of $200.00 per month, and for the second five years only the sum of $250.00 per month, and that the right of renewing said lease, as is provided for in the paragraph numbered ten (10) of the original lease, be assigned and transferred to plaintiff; and, further, that proper adjustment be made in the decree as to credit to plaintiff for any and all excess payment made, or that may be made prior to entry of final judgment herein ***”

The questions are, has the district court jurisdiction:

(1) To reform the lease by decreasing each monthly payment one hundred dollars?

(2) To allow plaintiff credit on future rentals for excess payments?

(3) To enforce the execution and delivery of an assignment of the right to renew the lease after ten years?

[2][3][4] The general rule stated in innumerable decisions is that jurisdiction is the power to hear and decide; and, broadly speaking, it may be exercised either in rem or in personam. While constructive service of process clothes the court with jurisdiction to try actions in rem, there...