FIRST NAT'L BANK V. GEORGE, 1920-NMSC-025,
26 N.M. 46, 189 P. 240 (S. Ct. 1920)
FIRST NAT. BANK OF ELIDA
vs.
GEORGE et al.
SUPREME COURT OF NEW MEXICO
1920-NMSC-025, 26 N.M. 46, 189 P. 240
Appeal from District Court, Roosevelt
County, McClure, Judge.
Suit by the First National Bank of Elida, N. M.,
against Cleve George and B. F. Bennett, with attachment. Judgment against
defendants by default, motion to vacate the judgment denied, motion to amend
the attachment bond granted, and from the final judgment and the orders
defendants appeal.
1. In an action in attachment where defendant appears and
moves to quash a writ but does not plead to the complaint, a judgment by
default on the case in chief may be properly entered against him, although the
motion to quash the writ is still undetermined. P. 48
2. Obvious clerical errors in the exhibit attached to a
complaint may be disregarded when a default judgment is taken or corrected
subsequently to correspond to the proof offered. P. 50
G. L. Reese, of Portales, for appellants.
T. E. Mears, of Portales, for appellee.
Raynolds, J. Parker, C. J., and Roberts,
J., concur.
{*46} {1} OPINION OF THE COURT. This case arose out of the
following facts: On October 8, 1918, plaintiff below, appellee here, filed suit
against one Cleve George and B. F. Bennett on a joint and several promissory
note for $ 1,158. At the same time, plaintiff filed an affidavit in attachment,
alleging as a ground that the defendant Cleve George was a nonresident of New
Mexico and was a resident of Texas. On October 9, 1918, plaintiff filed a
second affidavit in attachment against B. F. Bennett, alleging as a ground for
attachment that said Bennett was about to remove his property and affects from
the state of New Mexico so as to hinder, delay, and defraud {*47}
his creditors. In both of these affidavits plaintiff prayed that a writ of
attachment issue, and on the 8th day of October, 1918, filed an attachment bond
in the sum of $ 2,800, payable to the state of New Mexico. On October 18, 1918,
a writ of attachment and summons was filed with the clerk, the sheriff's return
showing that he had attached the property of Cleve George on October 8, 1918,
and that subsequently, on October 18, 1918, he had served the defendant George
with a true copy of the summons and complaint attached thereto by delivering
said papers to him, the said defendant, in person. The sheriff also certified
that he served the defendant B. F. Bennett in person on October 8, 1918.
{2} On November 6, 1918,
defendants, George and Bennett, filed a motion to quash the attachment on the
grounds that no attachment bond was executed and filed prior to the issuance of
the writ; that the bond was not payable to the defendants as it was required by
law to be, and was not executed in at least double the amount alleged to be due
plaintiff.
{3} On November 9th plaintiff
moved for judgment against defendants, Cleve George and B. F. Bennett, on the
ground that they had been personally served and were in default, not having
answered the complaint, nor in any manner pleaded thereto. The same day the
clerk made a certificate, and both defendants had been served with summons and
a copy of the complaint, and also with a writ of attachment and summons on
October 18th, and that no appearance or pleading for said defendants, except a
motion to quash the writ of attachment, had been filed in the clerk's office.
{4} On November 13th,
judgment was taken against defendants, by default, which was filed on November
15th. The judgment was a personal one and does not mention the attachment issue
nor the property attached.
{5} A motion to vacate said
judgment was filed on the ground, among other things, that the defendants were
{*48} not in default when it was taken. This
motion to vacate was denied. Subsequently, December 27, plaintiff filed a
motion to amend his complaint to conform to the evidence given when the default
judgment was taken, which motion was granted. On the same day, December 27,
1918, a motion was filed for leave to amend the attachment bond and have the
same relate back to the inception of the attachment. This motion was granted
March 12, 1919, nearly three months later, the court allowing plaintiff three
days in which to file and have approved a sufficient attachment bond, or, on
failure to have such bond filed and approved within three days, defendants'
motion to quash attachment would be granted.
{6} Exceptions were taken by
the defendants to the action of the court at each step in the proceedings
hereinbefore set out. An appeal was prayed and granted on February 21, 1919,
from the final judgment entered on November 15, 1918, and from the order of the
court overruling defendants' motion to set aside such judgment.
{7} The appellant assigns
seven errors, four of which may be included in the one assignment, that the
court erred in rendering a default judgment against the defendants below
because the record shows defendants were not in default of appearances.
{8} The appellee relies on
the case of Ripley v. Aztec Mining Co.,
6 N.M. 415,
28 P. 773, where the
defendant traversed the affidavit of attachment but did not plead to the
declaration. Judgment was taken against him, and the only question in that case
was whether such judgment could be taken when the issue raised in the
attachment was still pending and undisposed of. The court decided that such a
course was proper and the judgment would be taken on the main issue while the
attachment issue was undetermined. Unless the statute law in this state has
been changed in regard to attachments, this decision is controlling in the
present case. Appeals may now be taken from a judgment on
{*49}
the attachment issue. Sections 4335 and 4336, Code 1915. But except for
this change the statutes on this branch of attachment are the same as in 1892,
when the case of Ripley v. Mining Co., supra, was decided. Section 4309, Code
1915, as to attachments, and section 1934, C. L. 1884, are the same, as are
also sections 4188, Code 1915, and section 2061, C. L. 1884, as to default
judgments. Section 4309, Code 1915, is as follows:
"Original writs of attachment shall be issued and
returned in like manner as ordinary writs of summons; and when the defendant is
cited to answer the action, like proceedings shall be had between him and the
plaintiff as in ordinary actions on contracts, and a general judgment may be
rendered for or against the defendant."
{9} It is urged by appellant
that section 4107, Code 1915, being the part of chapter 107, Laws 1907,
providing the order of pleading shall be as follows: (1) Legal exceptions; (2)
pleas in abatement; (3) pleas in bar -- changes the procedure in a case of this
kind, and that, while a motion to quash is pending and undisposed of, judgment
cannot be taken by default until it is first determined.
{10} This contention may be
correct as to the attachment issue, but not as to the main issue in the case.
The plaintiff in attachment tenders two issues: (1) His right to have the
remedy by attaching defendant's property to secure him for the debt or claim he
alleges to be due him, and (2) the right to recover generally upon the claim in
suit. The defendant must meet both issues if he does not wish to waive or be in
default as to one or both of them. If he moves to quash the attachment and goes
no further, service having been made upon him, he will be in default at the end
of the statutory time for pleading on the main issue. He may plead to the main
issue and waive the attachment issue or he may plead to the attachment issue
and waive or confess the main issue. If defendant is successful on the main
issue, the attachment, of course, is dissolved. The right to appeal, by section
4336, is given to either party on the
{*50} attachment
issue; but we hold that a motion made as to the attachment issue will not
prevent action being taken in the other branch of the case, even though the
motion is not disposed of. If defendants seek to defend against the attachment
proceeding and the main issue at the same time, proper steps must be taken to
meet both issues.
{11} We therefore hold that
the court committed no error in giving judgment by default against the
defendants on the main issue in this suit, although there was a motion to quash
the attachment outstanding and undetermined at the time such judgment was
taken.
{12} It is further assigned
the court erred in rendering judgment because the complaint showed on its face
that the note on which the cause of action was based was not due and payable.
This is strictly true because the date shown in the exhibit attached to the
complaint was 1918 and it should have been 1917. It was subsequently amended to
read "1917." This was clearly an obvious clerical error as shown by
the allegations in the complaint and in the attachment affidavit setting out
the correct date. The court properly disregarded the error in giving judgment
-- especially in a case like the present one where the defendant was in default
and not in a position to complain. This also applies to the amendment allowed
after judgment where plaintiff amended his complaint to correspond to the proof
offered at the time the default judgment was taken.
{13} As to the seventh
assignment of error that the court erred in allowing plaintiff to amend his
attachment bond, it is evident from what we have heretofore said that the
attachment issue is not before us in this case. No judgment was entered nor
action taken upon the attachment issue, and it was not included in the appeal
which, by the terms of the order allowing it, was from the judgment of November
15, 1918, and the order refusing to set said judgment aside.
{*51} {14} Finding no error, the case is therefore
affirmed, and it is so ordered.