State v. BOLTON
| Decision Date | 03 May 1949 |
| Docket Number | No. 5174,5174 |
| Parties | STATE ex rel. DAVIE et al. v. BOLTON, Justice of the Peace. |
| Court | New Mexico Supreme Court |
William E. Aulgur, of Farmington, for appellants.
J. J. DeWeerd, of Farmington, for appellee.
The appellants seek the reversal of a judgment denying them a writ of prohibition against a justice of the peace.
The relators joined in filing suit in the justice court of Precinct 12 in San Juan County against A. L. Boles on open accounts severally claimed owing to them individually and had Carol Spencer summoned as garnishee. An affidavit was filed stating that the defendant was a nonresident of New Mexico and that it would be necessary to procure service upon him by publication, whereupon the justice signed the notice which was published in a local newspaper warning the defendant to appear on or before July 1. On July 3d the justice signed a judgment against the defendant and garnishee for $185.40, the total of the claims, and for $38.40 as costs, but dated it back to July 1.
It appears that when the judgment was entered the justice, instead of placing it in the file jacket, took it to his home where it remained in a coat pocket for some time. On July 22d an attorney for the defendant called at the office of the justice of the peace and asked whether a judgment had been entered, and also asked to see the file. The justice was absent from the office on account of illness but his wife showed the file to the attorney, but as the judgment was still in the coat pocket of the justice at his home the attorney took it for granted ajudgment had not been entered, and shortlythereafter filed a general denial to the action on the accounts and a traverse of the affidavit for the writ of garnishment. On July 26th the justice returned to his office and advised the attorney for the defendant of the entry of the judgment, whereupon leave was procured to withdraw the answer and traverse of the affidavit in garnishment, and motions of various kinds were filed, directed against the misjoinder of parties plaintiff, the notice of publication, affidavit for the writ of garnishment, the bond in garnishment, the return day of the writ of garnishment, and the date of the rendition of the judgment, and for a bill of particulars.
The motion of the defendant for a bill of particulars was set for hearing by the justice, whereupon the relators filed their petition for a writ of prohibition in the district court seeking an order forbidding the justice from hearing any of...
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State v. CARMODY
...special tax involved would have been absolutely void. Cf. Walls. v. Erupcion Mining Co., 36 N.M. 15, 6 P.2d 1021, and State ex rel. Davie v. Bolton, N.M., 206 P.2d 258. We think the present case is not one calling for our writ for want of jurisdiction in respondent to take the threatened ac......
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...would have been absolutely void. Cf. Walls. v. Erupcion Mining Co., 36 N.M. 15, 6 P.2d 1021, and State ex rel. Davie v. Bolton, N.M., 206 P.2d 258. We think the present case is not one calling for our writ for want of jurisdiction in respondent to take the threatened action. Had he issued t......
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...remedy under such circumstances. City of San Diego v. Superior Court, 36 Cal.2d 483, 224 P.2d 685 (1951); and State ex rel. Davie v. Bolton, 53 N.M. 256, 206 P.2d 258 (1949). This court is satisfied that, once the matter of possession (as distinguished from title or other matters) is res ju......
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...special tax involved would have been absolutely void. Cf. Walls v. Erupcion Mining Co., 36 N.M. 15, 6 P.2d 1021, and State ex rel. Davie v. Bolton, 53 N.M. 308, 206 P.2d 258.' We have recently recognized the rule in State ex rel. Davis et al. v. District Court of Fifth Judicial District, 67......