CROWELL V. KOPP, 1919-NMSC-065, 26 N.M.
146, 189 P. 652 (S. Ct. 1919)
CASE HISTORY ALERT: affected by
1987-NMCA-068
SUPREME COURT OF NEW MEXICO
1919-NMSC-065, 26 N.M. 146, 189 P. 652
Appeal from District Court, Santa Fe
County; Holloman, Judge.
Rehearing Denied May 24, 1920.
Suit by Eleonora Warning Crowell
against Augusta Kopp on a note and to foreclose a mortgage. Decree for
plaintiff, and, from an order vacating an order appointing a second special
master to make sale, plaintiff appeals.
1. Any action on the part of a defendant, except to object to
the jurisdiction of the court, which recognizes the case as pending in the
court will amount to a general appearance. P. 148
2. The effect of a general appearance after judgment is to
waive all questions as to the jurisdiction of the person of the defendant at
the time of the rendition of the decree. P. 148
3. A general appearance after decree of foreclosure of a
mortgage precludes a defendant from raising questions as to errors in the
judgment. P. 148
4. Sections 2190, 2191, 3085, 3086, 3347, and 4185, Code
1915, interpreted, and
held that a decree of foreclosure of a mortgage
is not such a judgment as falls within the terms of the statute, which renders
a judgment dormant after five years from its rendition, nor does such a decree
become inoperative after seven years from its rendition. P. 149
5. The words "final process" as used in Code 1915,
§ 3085, which provides that it shall not be necessary to bring proceedings to
revive a judgment obtained in a court of competent jurisdiction, except in
cases where such judgment had been rendered for a period of five years or more
next preceding the issue of "final process," mean
"execution" which, in turn, means a writ enforceable against the
property of defendant. P. 150
Francis C. Wilson, of Santa Fe, for
appellant.
Catron & Catron, of Santa Fe, for
appellee.
Parker, C. J. Roberts and Raynolds, J.J.,
concur.
{*147} {1} OPINION OF THE COURT. A decree was rendered on
March 21, 1911, for the sum of $ 437.40 and $ 50 attorney's fees and costs,
against appellee upon a promissory note and for the foreclosure of a mortgage
given to secure the same. The special master appointed in the decree to make
sale of the property having removed from the state, another person was
substituted by a subsequent order entered March 16, 1918, and he proceeded to
advertise the property for sale. The appellee appeared in the cause, and moved
to vacate the order appointing said last special master, and to hold for naught
the publication of said notice of sale, which motion was granted on June 19,
1918. Appellant has appealed from this judgment.
{2} There were two motions
filed by appellee to vacate and set aside the order appointing the special
master to make the sale. The first motion was upon the ground that the
judgment, having been rendered on the 21st day of March, 1911, became dormant
upon the 21st day of March, 1916, five years thereafter, and that, no suit
having been brought since the date of the judgment to revive the same, the
judgment had become absolutely dead. {*148} A
second and additional motion to vacate said order was filed later, and attacked
the sufficiency of the summons and the return thereon. It also attacked the
original judgment in the case upon the ground that it was for $ 6.26 too much
as to attorney's fees. It further attacked the original judgment upon the
ground that there was no authority in plaintiff's assignor, as administrator,
to assign the note and mortgage in question to the plaintiff, and that the
plaintiff therefore had no right to maintain the action.
{3} It thus appears that the
appellee moved the court to vacate the order appointing the special master to
make the sale, not only upon the ground that there was no jurisdiction obtained
of the defendant, by reason of defects in the summons and its service, but she
also founded her motion upon the ground that the original judgment was invalid
for the reason that it was rendered for too large an amount, and for the reason
that the appellant was not entitled to maintain the action, and upon the ground
that the statute of limitations had run against the judgment. This was a
general appearance on the part of the appellee. Any action on the part of the
defendant, except to object to the jurisdiction, which recognizes the case as
in court, will amount to a general appearance. Dailey v. Foster, 17 N.M. 377,
128 P. 71; Boulder Sanatorium v. Vanston, 14 N.M. 436, 94 P. 945; Fowler v.
Continental Casualty Co., 17 N.M. 188, 124 P. 479.
{4} The effect of this
general appearance was to waive all questions as to the jurisdiction of the
person of the defendant, and the discussion in the briefs as to the validity of
the summons and of the return thereon becomes of no importance. The appellee is
to be deemed to be in the same position as any ordinary defendant who has
defaulted, and against whom judgment, with jurisdiction, has been taken. Fowler
v. Casualty Co., 17 N.M. 188, 124 P. 479.
{5} As to the objection to
the judgment that it was for $ 6.26 too much, and that there was no valid
assignment {*149} of the note and
mortgage to the plaintiff, no jurisdictional question is involved. If the
action of the court was objectionable, the action was simply erroneous and not
void. Such an objection would be available only in some direct attack upon the
judgment, as by appeal. The judgment bound the parties as to all matters
determined by it, and became a finality as to all issues before it. There was
jurisdiction of the subject-matter, and in view of the subsequent general
appearance of the defendant there was, viewing the parties as in their present
status, jurisdiction of the person of the defendant. The judgment was no longer
open to collateral attack. 19 R. C. L. Mortgages, § 368. This being the case,
the two objections mentioned are not for consideration.
{6} There remains the
question in regard to the statute of limitations. Counsel relies upon sections
3085, 3086, and 3347, Code 1915, which are as follows:
"Sec. 3085. It shall not be necessary to bring
proceedings in any court to revive a judgment having been already obtained
before a court of competent jurisdiction in this state except in cases where
such judgment had been rendered for a period of five years or more next
preceding the issue of final process for the enforcement of the same.
"Sec. 3086. An execution may issue at any time on
behalf of any one interested in such judgment referred to in the above section,
within five years after the rendition thereof, and without the necessity of
bringing an action to revive the same."
"Sec. 3347. Actions founded upon any judgment of
any court of the state of New Mexico may be brought within seven years from and
after the rendition of such judgment, and not afterward, and actions founded
upon any judgment of any court of record of any other state or territory of the
United States, or of the federal courts, may be brought within seven years from
and after the rendition of such judgment, and not afterward."
{7} Section 3347 has no
bearing upon the question. This proceeding is not an action on the judgment any
more than an execution to enforce a common-law judgment would be an action on
the judgment. The section refers to and controls actions in regular form,
brought upon
{*150} judgments to revive
them or to recover upon them or upon foreign judgments, and the like.
{8} Sections 3085 and 3086
come from chapter 61, Laws 1887. Previous to the passage of this chapter we had
no statute enlarging the time beyond the common-law year and a day within which
execution might issue on a judgment. The chapter merely enlarged the time
within which execution might issue without first reviving the judgment.
{9} The question recurs,
however, as to the meaning of the words "execution" and "final
process" as used in the statute. The word "execution" was first
used in our laws in the Kearny Code, and the same now appears as section 2190,
Code 1915, as follows:
"The party in whose favor any judgment, order or
decree in any court may be returned, shall have execution therefor in
conformity to the order, judgment, or decree."
{10} This section by its
terms evidently contemplates the issuance of execution for the enforcement of
money judgments at law, and also orders and decrees in equity. Just what is
meant by the section more clearly appears from section 2191, Code 1915, which
is also from the Kearny Code, as amended, as follows:
"The execution shall be against the goods,
chattels and lands of the defendant against whom the judgment order or decree
shall be rendered: Provided, that executions from justices of the peace shall
not go against lands."
{11} It appears from this
section that the execution provided for is one which may run against the
property of the defendant generally, and is not one for the enforcement of
liens upon specific property, such as mortgages and the like. Confirmation of
this distinction is found in section 2195, Code 1915, where sales under
execution and sales under other process are mentioned, and in section 2198,
Code 1915, where sales under execution and sales under orders or decrees are
mentioned. The words "final process" as used in section 3085, supra,
{*151} might well be held to include an order
of sale of mortgaged property under decree of foreclosure if its section stood
alone, but, taken in connection with section 3086, it seems clear that the
"final process" intended is the "execution" mentioned in
the latter section. The words are used with reference to the same kind of a
judgment by the express terms of the section. This being true, the words
"final process" mean "execution", which in turn means a
writ enforceable generally against the property of the defendant. An order of
sale of mortgaged property is thus excluded from the operation of the statute.
It follows that there is no statute of limitations in this jurisdiction
applicable to the enforcement of a decree of foreclosure of a mortgage.
{12} Other states have
considered this question in connection with similar statutes. In Ohio it is
held that there is no limitations upon a decree of foreclosure, for the reason
that it is not a judgment within the meaning of the statute in that state,
providing a five-year limitation upon judgments. See Beaumont v. Herrick, 24
Ohio St. 445; Moore v. Ogden, 35 Ohio St. 430. The Ohio cases have been
followed in Nebraska. See Herbage v. Ferree, 65 Neb. 451, 91 N.W. 408; Jenkins,
etc., Co. v. Kimsey, 99 Neb. 308, 156 N.W. 499. See, also, Fowler v. Bank of
Americus, 114 Ga. 417, 40 S.E. 248, where it is likewise held that decrees of
foreclosure are not within the Dormant Judgment Act of that state. The reason
for the conclusion in Georgia is somewhat different from that assigned in Ohio,
and Nebraska, it being founded upon the proposition that the Dormant Judgment
Act was designed to do away with stale judgments which created liens upon all
of the debtor's property, while a decree of foreclosure of a mortgage created
no general lien, and was therefore not intended to be within the terms of the
statute.
{13} In California the
opposite conclusion is reached, based upon the phraseology of their statute,
which draws a distinction between a judgment for the recovery of money and
other judgments. Under this statute the
{*152}
California court holds that, while a decree of foreclosure is not strictly
a personal judgment against the party indebted, it is nevertheless a judgment
to enforce the payment of money, and that therefore it falls within the Dormant
Judgment Act. See Dorland v. Hanson, 81 Cal. 202, 22 P. 552, 15 Am. St. Rep.
44; Jacks v. Johnston, 86 Cal. 384, 24 P. 1057, 21 Am. St. Rep. 50. In Kansas a
like conclusion is reached as in California, based upon the statutory
definition of a judgment in the Kansas Code. See State ex rel. Henry v.
McArthur, 5 Kan. 280; Watson v. Keystone Iron Works Co., 70 Kan. 61, 78 P. 156.
The definition in the Kansas Code referred to is that "a judgment is the
final determination of the rights of the parties in an action." Code Civ.
Proc. § 393 (Gen. St. 1915, § 7297). It is therefore held in that state that a
decree of foreclosure is a judgment, and as such falls within the terms of the
Dormant Judgment Act of that state. Unlike the Kansas Code, our Code still
preserves, at least recognizes, the distinction between a judgment and a
decree. See section 4185, Code 1915.
{14} So far as we have
observed, in those states where decrees of foreclosure are held to become
dormant the same as ordinary money judgments, it is because of some particular
phraseology of their statute which is not present in ours.
{15} It follows from the
foregoing that the district court was in error in vacating the order appointing
the special master to make the sale of the mortgaged property, and the judgment
should be reversed, and the cause remanded to the district court, with
instructions to proceed in accordance herewith; and it is so ordered.