GALLAGHER V. LINWOOD, 1924-NMSC-056, 30
N.M. 211, 231 P. 627 (S. Ct. 1924)
SUPREME COURT OF NEW MEXICO
1924-NMSC-056, 30 N.M. 211, 231 P. 627
Appeal from District Court, Colfax
County; T. D. Leib, Judge.
Rehearing Denied November 22, 1924.
Election contest by Manes Gallagher
against William J. Linwood. From a judgment for defendant, plaintiff appeals.
1. A paper is filed when it is delivered to the proper
officer to be kept on file.
D. K. Sadler, H. L. Bickley, and H. A.
Kiker, all of Raton, for appellant.
Crampton and Darden, of Raton, for
appellee.
Botts, J. Parker, C. J., and Bratton, J.,
concur.
{*212} {1} OPINION OF THE COURT. The appellant contested the
election of the appellee for the office of sheriff of Colfax county. The court,
on motion of appellee, struck appellant's reply, and then sustained appellee's motion
for judgment on the pleadings. The motion to strike the reply was based on two
grounds: First, that service of the reply had not been made as required by law;
and, second, that the reply was not filed within the time required by law.
{2} Service of the reply was
not made by the sheriff or by some one specially appointed by the court to make
service, but by a private individual, over the age of 18 years and not a party
to the action, who made return by affidavit, from which it appears that he
unsuccessfully endeavored to find the appellee at his usual place of abode and
elsewhere, and thereupon served the reply on the appellee by securely tacking a
copy thereof on the front door of his residence. Section 2076 of the Code of
1915 requires that "a copy of the notice of contest, answer and reply
shall be served respectively in the same manner as process is now by law
required to be served in an action at law." This section is a part of the
act of January 14, 1876, prescribing the procedure for election contests; and
it is argued by appellee that, by the language quoted, the law prescribing the
manner in which process should be served, which was in force on January 14,
1876, was adopted as a part of the election contest statute, thereby requiring
that service of the reply be made in the manner then prescribed rather than in
the manner prescribed by the law in force at the time of making the service,
and that the words "in the same manner" include, not only the method
of service, but the qualification of the person by whom service is to be made.
Appellant, on the other hand, argues that, even though it be conceded that the
law prescribing the manner of service in force at the time of the passage of
the election contest act is to be followed, yet he was not compelled to look to
the law as
{*213} it then existed for
the qualification of the officer or person by whom service should be made.
{3} At the time service of
the reply was made, section 4093 of the 1915 Code authorized the service of
summons by any person not a party to the action, over the age of 18 years; but
the statute in force at the time of the passage of the election contest statute
did not authorize service by a private individual. We have been able to find
but one case where the exact question has been passed on. The statutes of
Minnesota (Gen. St. 1878, c. 81, § 5) required that, on foreclosure of a
mortgage by advertisement, the copy of notice of sale "shall be served in
like manner as summons in civil actions in the district court," and in the
case of Kirkpatrick v. Lewis, 46 Minn. 164, 47 N.W. 970, 48 N.W. 783, the
Supreme Court of Minnesota held that the language had reference merely to the
mode of making service, and not to the persons by whom it might be made. The
court said:
"Gen. St. 1878, c. 81, § 5, provides that 'such
notices shall be served in like manner as summons in civil actions in the
district court.' By reference to Gen. St. c. 66, we find that section 56
provides by whom summons in civil actions may be served, to wit, 'by the sheriff
of the county where the defendant is found, or by any other person not a party
to the action.' Also that section 59 provides how and on whom they shall be
served, to wit, 'by delivering a copy thereof as follows: * * * Fourth. To the
defendant, personally, or by leaving a copy at the house of his usual abode,'
etc. We are clearly of the opinion that the words 'in like manner,' used in
section 5, c. 81, refer only to the mode of service, and not to the persons by
whom it may be made; and hence that the provisions of section 56, c. 66, have
no application. Among the reasons aside from the literal and natural meaning of
the language used, that lead us to the conclusion are the following: Works of
practice and codes of procedure, as does chapter 66 of our statutes, invariably
treat of the questions by whom service may be made, and the mode and manner of
making it, as distinct subjects, thus indicating a general understanding that
the latter does not include the former."
{4} The reason given by the
Minnesota court for its conclusion is applicable here, since the mode or manner
of making service is treated by chapter 29 of the Revised Statutes and Laws of
Territory of 1865, while the officers by whom service may be made are dealt
{*214} with in chapters 20 and 99 of the
Revised Statutes of that year. These statutes were in force at the time the
election contest law was adopted, as was also the Act of January 31, 1867 (Laws
1866-67, p. 106) providing for the service of process when there should be a
vacancy in the office of sheriff, or when the sheriff should be a party to the
suit, or otherwise disqualified. Section 4 of said chapter 20 is in the
following language:
"Sec. 4. It shall be the duty of the clerk of the
district court, in all causes not otherwise provided for, to issue all process
to the sheriff of the county in which the trial or cause shall be commenced or
presented, or in which final sentence shall be rendered; and it shall be the
duty of the sheriff to execute faithfully such process, and return the same to
the said court, as provided by law."
{5} Section 2 of said chapter
99 is as follows:
"Sec. 2. All process issued by the clerks of the
circuit court, and by the clerks of the perfects, shall be directed to the
sheriff of their respective counties, who shall execute such process according
to law, and shall attend upon such courts during their sittings."
{6} Section 1 of chapter 29,
under the subhead "How Process Served," is as follows:
"Section 1. That all original process from any of
the courts in this territory shall be executed by the proper officer as
follows: * * * Fourth. If no such person shall be found willing to accept a
copy of the process as above provided for, then by posting the same in the most
public part of the defendant's premises. * * '"
{7} It is observed that by
said chapter 20 it is made the duty of the sheriff to execute process "as
provided by law," and by chapter 99 it is made his duty to execute the
process "according to law." The meaning of the sections would not
have been changed in the least had they required in each instance that the
sheriff executed process "in the manner required by law," and, in
order to ascertain the manner of service which the law required, reference must
be made to a widely separated chapter of the Revised Statutes, where the
different methods or modes of making service are
{*215}
prescribed. From this we conclude that, when the Legislature required
service to be made "in the same manner as process is now by law required
to be served in an action at law," it was the intention to prescribe the
method or mode of making service, without reference to the person or officer by
whom such service should be made.
{8} Appellee relies on
Brumleve v. Cronan, 176 Ky. 818, 197 S.W. 498. While it appears therefrom that
the Kentucky election contest statute requires the notice of contest to be
"served in the same manner as a summons from the circuit court," the
question now before us was not considered by the court. The particular question
there was whether or not a sufficient showing had been made to secure the
appointment of a special bailiff to make service. It is significant, however,
that the Kentucky court in its discussion seemed to consider the manner of
service and the person or persons by whom service might be made as two separate
and distinct subjects, holding that the notice "must be served in the
manner and at the time and by the persons or person as required by the
statute." Nor are we aided by the Missouri case of State ex rel. Woodson v.
Robinson, 270 Mo. 212, 192 S.W. 1001, likewise relied on by appellee. No
language similar to that contained in our statute and now under consideration
was before the court for construction in that case. The principle question was
whether the notice of contest must be served by one authorized to serve process
in civil actions, or could be served by one qualified under the statute to make
service of ordinary notices. It was held that inasmuch as the notice was, in
effect, the process by which the contestee was brought into court, it must be
served by one qualified to make service of any other original process.
{9} It becomes of no
importance to determine whether or not the law prescribing the manner of
service in effect at the time of the passage of the election contest act, or
that in effect at the time service was had, is
{*216}
to be followed, since the manner of service, as defined by us, is the same
in both cases.
{10} The only remaining
question to be decided in determining the sufficiency of the service is whether
or not sufficient effort had been made to find the appellee before posting copy
of the notice on the front door of his residence. The principal argument
advanced by appellee in this particular is that, while the person employed to
make service had been to appellee's house twice, and each time had rung the
doorbell without finding anyone, he did not ring the doorbell when he returned
the third time for the purpose of posting the notice on the door. While it is
true that the election contest statute prescribes a special procedure which
must be strictly followed, as argued by appellee and as conceded by appellant,
we believe it would be carrying the strictness entirely too far, and beyond all
reason, to hold the service bad because the doorbell was not rung on the third
trip. All three visits to appellee's residence were made on the same evening,
each succeeding one being made very shortly after the next preceding. After
failing to find any one upon whom service might be made on the second visit,
the person in charge of making the service returned to the office of
appellant's counsel for directions, and, immediately thereafter, made his third
visit for the purpose of posting the notice. The motion to strike the reply,
therefore, in so far as it is based on the ground of alleged insufficiency of
service, was not well taken.
{11} The other ground on
which the motion is based depends on these facts: Late in the afternoon of the
last day allowing by law for filing a reply, one of the attorneys for the
contestant called the clerk on the telephone, and requested that she remain in
the office beyond the usual closing hour, in order that he might file a paper,
the preparation of which was then not quite complete. This request was granted,
and later the attorney appeared at the clerk's office and presented the reply
in this case, and the clerk put on
{*217} it
the usual filing certificate. The attorney then asked permission to take the
reply across the hall to the contestee's office, to see if he would accept and
acknowledge service thereof. In a few minutes, he returned, advising the clerk
that he had not found the contestee, and again asked her permission to take the
reply with him. This request was also granted, and the attorney departed with
the paper. The clerk made no record of the filing, and the attorney left no
receipt. The next forenoon, after the time for filing a reply had expired, one
of the attorneys for the contestee examined the files and records of the
clerk's office, and found no reply and no record of one having been filed. He
was told by the clerk what had taken place. The clerk then called contestant's
attorney on the phone, and advised him of the inquiry. He returned the reply to
the clerk's office, and the clerk entered a record in her docket of the filing
as of the previous day. The question is whether the reply was filed in time.
{12} Hundreds of opinions are
found dealing with the question of whether or not a paper has been filed, but
they do little more than state a general rule, from which the courts determine
whether or not there has been a filing under the particular facts and
circumstances there under consideration. This general rule, on which all the
courts seem to agree, is epitomized by Mr. Freeman in a note appearing at page
294 of 15 American State Reports. He says:
"The word 'file' is derived from the Latin filum,
signifying a thread, and its present application is evidently drawn from the
ancient practice of placing papers upon a thread or wire for safekeeping. The
origin of the term clearly indicates that the filing of a paper can only be
effected by bringing it to the notice of the officer, who anciently put it upon
the thread or wire; and, accordingly, under the modern practice, the filing of
a document is now generally understood to consist in placing it in the proper
official custody by the party charged with the duty of filing it, and the
receiving of it by the officer, to be kept on file. Phillips v. Beene, 38 Ala.
248; Holman v. Chevaillier, 14 Tex. 337; Gorham v. Summers, 25 Minn. 81; Naylor
v. Moody, 2 Blackf. 247. The most accurate definition of filing a paper is that
it is its delivery {*218} to the proper
officer, to be kept on file. County Commissioners v. State, 24 Fla. 55, 3 So.
471; 12 Am. St. Rep. 183; Peterson v. Taylor, 15 Ga. 483, 60 Am. Dec. 705;
Powers v. State, 87 Ind. 144; King v. Penn., 43 Ohio St. 57, 1 N.E. 84.".
{13} Contestant relies on
three cases in support of his argument that the paper had been filed, viz.,
Pendrey v. Brennan, 31 Idaho 54, 169 P. 174, Phillips, Goldsby & Blevins v.
Beene's Administrator, 38 Ala. 248, and Bade v. Hibberd, 50 Ore. 501, 93 P.
364. These cases do little more than state the general rule, and the first two
hold, under the facts there involved, that there was no filing. However, the
facts are so very dissimilar to those involved in the case now before us that
they are of little value.
{14} Contestee relies on
Meridian National Bank v. Hoyt, 74 Miss. 221, 21 So. 12, 36 L. R. A. 796, 60
Am. St. Rep. 504, and Beal v. Alexander, 6 Tex. 531. The facts in those cases
more nearly resemble the facts here. However, in the Mississippi case the
rights of a third party were involved, as was also the situation in the case of
Wilkinson v. Elliott, 43 Kan. 590, 23 P. 614, 19 Am. St. Rep. 158. In the Texas
case the opposing parties were further misled by the silence of counsel, who
knew of the filing, if any had been made, at a time when the existence of the
paper in question was material to the action of the court. The cases cited by
contestee strongly persuade us of the correctness of his position, but, on the
whole, we have concluded that a proper application of the general rule to the
facts of this particular case requires us to hold that the paper was filed at
the time it was delivered by contestant's attorney, on the evening of the last
day upon which it could have been filed under the law. The duty of the party
desiring to file a paper is performed with its delivery to the proper officer,
to be kept on file, and the failure of the officer to perform his duty does not
prejudice the rights of the parties. Neither does the withdrawal of a paper
after it has once been filed cancel or render ineffective the previous filing,
and the fact that this paper was withdrawn immediately after its delivery to
the clerk
{*219} is only evidence to be
considered in determining the question of whether or not the paper was then
filed. This is also true of the certifying by the clerk on the paper itself
that it had been filed. That is not conclusive, but is only evidence to be
considered along with other facts. Likewise, while the law requires the clerk
to make a record of a paper when it is filed, the failure to so record the
filing is only evidence to be considered in determining the intention. The
evidence in this case, which has impelled us most strongly to the conclusion
already announced, is the fact that counsel asked permission of the clerk to
withdraw the paper, and the clerk granted that permission. Had the paper not
been filed, it would still have been in the control of the attorney, and the
clerk's permission would have been wholly unnecessary. Whether the clerk is
guilty of neglect of duty, and, if so, whether she has incurred any liability
because thereof, are questions not now before us. The second ground of the
motion to strike the reply is therefore likewise not well taken, and the court
committed error in sustaining the motion.
{15} This makes it
unnecessary for us to consider the court's ruling on contestee's motion for
judgment on the pleadings, because that motion was bottomed on the absence of
any reply denying the allegations of the answer.
{16} The case, therefore,
must be reversed, and remanded with directions to the trial court to overrule
contestee's motion to strike the reply, and it is so ordered.
{17} By motion, brief, and
argument on rehearing appellee urges that in our original opinion we have
assumed, without actually deciding, that section 4093 of the 1915 Code may be
looked to for the agency by whom the reply could be served in this case, and
contends that, even granting the correctness of our construction of the words,
"in the same manner
{*220} as
process is now by law required to be served in an action at law" we must
yet determine the question of the agency, and that a correct decision of that
question requires service by the sheriff (or, in case of disqualification, by
some one specially appointed.) We have become convinced that appellee is right
in this contention.
{18} The election contest
statute, in effect, makes the notice, answer, and reply process, but it is not
a summons in a civil action, which seems to be the only form of process which
said section 4093 authorizes to be served by a private individual. To be sure,
a summons is process; but all process is not a summons. Both at common law and
by statute process is required to be served by an officer, unless an exception
be made such as that contained in section 4093. An election contest being a
special proceeding, required to be strictly followed, such a statutory
exception cannot be broadened by construction so as to cover a necessary step
in the procedure, unless it be plainly apparent that it was so intended by the
Legislature. In the present instance such intention does not appear. The
attempted service of the reply, being unauthorized, was no service, and the
trial court was correct in treating the issues as though there was no reply.
This left undenied the new matter in the answer, from which, and from the
allegations of the notice, it appeared that appellee received a clear majority
of the legal votes cast at the election under consideration.
{19} From the conclusion
which we have now reached, it follows that our previous order should be set
aside and the judgment of the lower court affirmed, and it is so ordered.