BOWERS V. BRAZELL, 1926-NMSC-003, 31
N.M. 316, 244 P. 893 (S. Ct. 1926)
SUPREME COURT OF NEW MEXICO
1926-NMSC-003, 31 N.M. 316, 244 P. 893
Appeal from District Court, Union
County; Leib, Judge.
Suit by Vada Bowers against James Brazell to quiet
title Judgment for defendant, and plaintiff appeals.
1. In a suit to vacate a decree for fraud, allegations that
plaintiff's residence was known in the county, was written upon the tax rolls,
and in the possession of the county treasurer, do not charge fraud in the
making by defendant's attorney of an affidavit for service by publication in
which he states that plaintiff's residence is unknown.
2. Under section 4095, Code of 1915, an affidavit stating the
fact of nonresidence on information and belief is sufficient to support
jurisdiction on service by publication.
3. To charge fraud in a decree quieting a tax title, in that
evidence that the tax had been paid was suppressed, necessary to allege
knowledge of the fact of payment or that some document necessary to prove title
would disclose it.
D. A. Paddock, of Clayton, for appellant.
O. P. Easterwood, of Clayton, for
appellee.
Watson, J. Parker, C. J., and Bickley, J.,
concur.
{*317} {1} OPINION OF THE COURT. A former appeal of this
cause is reported as Bowers v. Brazell, 205 P. 715, 27 N.M. 685, where the
facts will be found stated. Necessary additional facts will be stated as we
proceed.
{2} The first decision held
the complaint insufficient as an attack on the decree for fraud in its
procurement. It was there particularly pointed out:
"No allegation is made in the complaint that
appellant had knowledge of appellee's residence, nor suppressed the notice of
the case and prevented such notice from reaching the appellee."
After the case had been remanded, the complaint was amended.
The new allegations are, in substance: (1) That the service by publication was
void because the affidavit, copy of which is set forth, was on information and
belief; (2) that the affidavit was a fraud on the court, "for the reason
that the address and whereabouts of this plaintiff (defendant therein) was
known in Union county, N.M., was written upon the tax rolls of Union county,
N.M., at the time this affidavit was made, and was in the possession of the
treasurer of the said county, in connection with the payment of the taxes on
the land herein sued upon"; (3) that the decree was void because it appears
on its face to have been taken on the pleadings, by means of which procedure
evidence, which would have shown the invalidity of the claimed tax title was
fraudulently suppressed.
{3} The amended complaint was
demurred to as not setting forth a cause of action, in that it appears
therefrom that there was sufficient service, and that no fraud was alleged
therein. Other grounds of the demurrer it is not necessary to notice. The
demurrer {*318} was sustained by the
court, and plaintiff (appellant) refusing to plead further, judgment was
entered dismissing the complaint.
{4} The affidavit for
publication, referred to and made a part of the amended complaint, is in the
following language:
"C. L. Collins, being first duly sworn, upon his
oath deposes and states that he is one of the attorneys for the plaintiff in
the above-entitled cause, and that the defendants above named, according to the
information and belief of affiant, are nonresidents of the state of New Mexico,
residing outside the limits of the said state of New Mexico, and that their
present places of residence are unknown to affiant."
{5} Appellant contends that
the new allegations charge fraud in the making of the affidavit, wherein it was
deposed that affiant did not know the present places of residence of the
defendants. The essential allegation pointed out, as above stated, in the
former opinion, is still lacking, but appellant relies on her allegations that
her place of residence was known in Union county, and was written upon the tax
rolls of that county.
{6} It is appellant's theory
that facts are to be pleaded rather than conclusions. The theory is correct,
but we think her application of it is wrong. It is urged that to have pleaded
that the affiant had actual knowledge, or reasonably accessible means of
knowledge, of appellant's residence would have been to plead a conclusion. With
this we cannot agree. That was the essential ultimate fact. The facts pleaded
were merely probatory or primary. The conclusion of fraud in the suppression of
notice need not, and probably should not, be pleaded. The ultimate facts should
be. From the ultimate fact the conclusion would follow. The facts pleaded are
material and relevant to the establishment of the ultimate fact, but they do
not of themselves support a conclusion of fraud. We are therefore compelled to
hold that the amended complaint before us fails to make out a case of fraud in
procuring a decree by suppressing notice of the proceedings.
{7} Appellant contends that
the service was void because the fact of nonresidence was stated merely on
information
{*319} and belief, and that,
since the court never acquired jurisdiction, the decree is void.
{8} This attack on the
decree, unlike that already disposed of, is not for fraud. The success of the
first requires pleading and proof of the falsity of the statement of the
affiant that appellant's residence was unknown. Here the fact that appellant
was not a resident of the state is admitted by the complaint. Sole reliance is
placed upon the proposition that a jurisdictional fact, though true, was not
proven.
{9} The objection which
appellant makes to the affidavit is that it is hearsay and affords no proof of
the essential fact of nonresidence.
{10} The controlling statute
(section 4095, Code 1915) provides:
"When any plaintiff, his agent or attorney * * *
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. * * *"
{11} It is not required, as
in many states, that the fact of nonresidence shall be made to appear to the
satisfaction of the court, whereupon an order shall be made for the
publication. It does not seem to be the fact of nonresidence of the defendant
that is jurisdictional. It is the filing of the affidavit showing that fact by one
qualified under the statute. So, if we find such an affidavit filed, the
jurisdiction must be conceded. Appellant's contention is thus reduced to the
proposition that the fact, stated on information and belief, is not
"shown."
{12} It is often difficult to
determine the place of one's residence, even when all facts are known,
testified by those having personal knowledge of them. It can seldom be the case
that a positive statement of the fact of residence can be in reality more than
a conclusion, opinion, or belief, based upon information. This is true in
greater degree of the negative fact of nonresidence. So the statute, in
requiring that the affidavit "show"
{*320}
nonresidence, deals with something in its nature capable of being shown, in
most cases at least, on information and belief only. When we note that the
affidavit may be filed only by the plaintiff, or his agent or attorney, we have
further evidence that the Legislature could not have contemplated that one of
these must be able to depose in positive terms. So to have required would have
resulted either in the necessity for reckless swearing or in unduly limiting,
if not entirely preventing, the operation of the statute.
{13} Appellant admits that a
diversity of opinion is found in the decisions, but contends that, according to
the better reasoned, nonresidence stated merely on information and belief is
insufficient. Of the cases cited at 32 Cyc., "Process," § 480, she
relies upon Romig v. Gillett, 23 S. Ct. 40, 187 U.S. 111, 47 L. Ed. 97; Feikert
v. Wilson, 37 N.W. 585, 38 Minn. 341, Corson v. Shoemaker, 57 N.W. 134, 55
Minn. 386.
{14} In Roming v. Gillett the
United States Supreme Court held only that the sheriff's return "not
served" was not a showing of due diligence under the Oklahoma statute,
requiring an affidavit stating that the plaintiff could not, with due
diligence, make service within the territory. The decision of the same case in
the territorial Supreme Court of Oklahoma, reported in 62 P. 805, 10 Okla. 186,
seems, however, to support appellant's view. In Feikert v. Wilson, the
Minnesota Supreme Court held that the fact that defendant had property within
the state could not be stated on information and belief in an affidavit
required as the basis for service by publication. The court seems to
distinguish the statute there involved, which required the fact to be
"stated" from statutes requiring the fact to be "shown."
Corson v. Shoemaker did not involve the question here under consideration.
{15} It has been held,
undoubtedly in many cases, that the positive averment that the defendant is not
a resident of the state is insufficient, if unaccompanied by a showing of the
information or knowledge on which
{*321} such
conclusion is based. See case note, 37 L. R. A. (N. S.) 206. However, a careful
reading of the note cited discloses that in most, if not all, of the
jurisdictions there represented the essential requirement of the statute is a
showing that the defendant cannot, with due diligence, be found or served
within the state. Of course, a mere averment on information and belief that a
defendant is a nonresident of the state is no showing of diligence in
attempting to find him. The New Mexico statute specifies no degree of
diligence, and, in fact, by its terms, requires none whatever. Inability to
make service within the state is to be presumed from the fact of nonresidence.
The refusal of many courts to accept a positive statement of nonresidence is
thought to illustrate the point we have sought to make. A statement admittedly
on information and belief is as convincing as a positive statement which, in
the nature of the case, can be no more than opinion or conclusion. As stated in
Colton v. Rupert, 27 N.W. 520, 60 Mich. 318:
"Good practice requires that the name of the
informant, or the source from which the information is derived, should be
stated, not as affording any additional weight to the affidavit as evidence,
but as a safeguard and check against false and reckless swearing."
{16} Our statutory procedure
regulating service by publication is loose as compared with those of other
jurisdictions coming to our attention. It no doubt lends itself readily to
abuse. That there has been any great abuse of it in this state is to be
doubted. We find nothing in our reports to indicate it. While the statute is
unquestionably to be strictly construed and strictly followed, we do not think
it within our province to read into it or to add to it what the Legislature has
omitted. It has been in force, in substance as at present, since 1874. Many titles
have been settled under it. Divorces have been granted under it. What has been
done in the past should not be unsettled by imputing to the Legislature an
intent not expressed. If it be thought that sound policy, for the prevention of
fraud and the protection of the property rights of nonresidents, demands
{*322} a reform in our procedure, any
additional requirements should have prospective application only.
{17} Holding the affidavit
sufficient under our statute to support the service by publication and, hence,
the jurisdiction to render the decree attacked, we cite the following decisions
as generally supporting our views here expressed: Hannas v. Hannas, 110 Ill.
53; Malaer v. Damron, 31 Ill. App. 572; Pettiford vs. Zoellner, 8 N.W. 57, 45
Mich. 358; Colton v. Rupert, 27 N.W. 520, 60 Mich. 318; Leigh v. Green, 86 N.W.
1093, 62 Neb. 344, 89 Am. St. Rep. 751, reported on rehearing 90 N.W. 255, 64
Neb. 533, 101 Am. St. Rep. 592, and affirmed 24 S. Ct. 390, 193 U.S. 79, 48 L.
Ed. 623; Smith v. Collis, 112 P. 1070, 42 Mont. 350, Ann. Cas. 1912A, 1158;
Jotter v. Marvin, 189 P. 19, 67 Colo. 548.
{18} Appellant contends that
the decree is void because of fraudulent suppression of evidence. It is alleged
in the amended complaint --
"that the said decree was and is void for the
further reason that it shows upon its face that it was taken on the pleadings
and no proof of the alleged title made, which was a fraud upon the court of
Union county, N.M., and upon this plaintiff, because thereby evidence of the
illegality and nullity of the plaintiff's alleged title in cause No. 4157 was
suppressed from the court."
Appellant points to the fact that the decree recites that it
was rendered on motion for judgment on the pleadings. Appellee points to a
recital therein that the court has "read and considered all the pleadings
and proof in said cause." We do not think it is to be inferred from these
recitals that the court neglected to satisfy itself by proof of the validity of
appellee's asserted title. We infer, rather, that the decree inadvertently
recites a motion for judgment on the pleadings instead of one for judgment as
upon default. However the fact may be as to that, it is of importance in this
proceeding only as it might evidence the suppression by appellee of the alleged
fact that the taxes upon which title rested had been paid. But it is not
alleged that appellee or his counsel had any knowledge of that fact, nor that
any document necessary to prove the {*323} title
discloses it. We can see no justification in the amended complaint for any
inference that a fraud was perpetrated upon the court, or upon the appellee
through the suppression of evidence.
{19} We have given this case
careful consideration because of the claim that the tax resulting in the loss
of appellant's property had in fact been paid. That being true, appellant has
suffered a hardship and an injustice, a remedy for which we should wish to
afford. But, as pointed out in the former opinion of this court, the validity
of appellee's title was settled in the former suit. We are concerned now only
with the validity of the decree establishing that title. Appellant has sought
to attack it on the ground of fraud and lack of jurisdiction, but has not, as
we are convinced, by her amended complaint set forth facts sufficient to
constitute a cause of action. It follows that the demurrer was properly
sustained. The judgment must be affirmed, and it so ordered.