HIGNETT V. ATCHISON, T. & S.F. RY., 1928-NMSC-062,
33 N.M. 620, 274 P. 44 (S. Ct. 1928)
HIGNETT
vs.
ATCHISON, T. & S. F. RY. CO.
SUPREME COURT OF NEW MEXICO
1928-NMSC-062, 33 N.M. 620, 274 P. 44
Appeal from District Court, Dona Ana
County; Frenger, Judge.
Action by M. P. Hignett against the Atchison, Topeka
& Santa Fe Railway Company. Judgment for plaintiff on appeal from the
justice of the Peace Court, and defendant appeals.
1. Question of sufficiency of summons is waived by appearance
and participation in the trial.
2. Rule 4 of practice for district courts (14 N.M. 711, 107
P. xi) does not contravene article 6, § 27, of state Constitution nor section
3224, Code 1915.
Holt & Holt, of Las Cruces, and Reid,
Hervey & Iden, of Albuquerque, for appellant.
J. H. Paxton, of Las Cruces, for
appellee.
Bickley, J. Parker, C. J., and Watson, J.,
concur.
{*620} {1} OPINION OF THE COURT Appellee filed an affidavit
in the justice of the peace court alleging that appellant had killed his horse,
by reason of which it owed appellee $ 175. Summons was issued in which the
constable was commanded to summon the appellant to answer a civil action more
fully described in the attached affidavit, in a plea of damages. The return
recites service of the summons on the agent of the appellant, railroad company.
{2} The record shows that the
case was postponed by agreement on three separate occasions; that hearing was
had in which evidence was introduced, and argument made by counsel for
plaintiff (appellee) and for defendant (appellant) by its claim agent. Judgment
was rendered in favor of plaintiff in the sum of $ 100 and costs. Notice of
appeal was given, appeal bond was filed by appellant and {*621}
approved by the court, and said cause "passed to the September term of
the 3d Judicial Court at Las Cruces, N. Mex."
{3} A transcript of the
proceedings in the justice of the peace court and the appeal bond were duly
transmitted from the justice of the peace court to the district court. On March
26, 1927, the cause came on for hearing, upon the motion of appellee for the
affirmance of the judgment rendered in the justice of the peace court. The court
found, among other things, that the appellant had failed to procure the
docketing of its appeal in the district court, and that appellee had procured
the docketing of said appeal and paid the clerk's fee for said docketing, and
the court thereupon granted the motion of appellee and affirmed the judgment.
{4} Attack is made on the
judgment because it is said neither the summons nor affidavit attached to same
did not contain the names of the parties and did not state a cause of action.
It may be true that a summons might be so fatally defective on account of
omission of some statutory requisite that the court would acquire no
jurisdiction over the defendant; but, in the case at bar, the defendant
appeared generally by agreeing to continuances and by participating in the
hearing in the justice of the peace court, and, when it took an appeal and
filed its appeal bond, it in effect entered its appearance in the district
court. See Pickering v. Palmer,
18 N.M. 473,
138 P. 198, 50 L. R. A. (N. S.)
1055. We hold that the court had jurisdiction of the parties.
{5} Appellant's second
proposition is that the proceedings are fatally defective because neither the
summons nor affidavit stated a cause of action. There seems no doubt that the
affidavit attached to the summons and referred to therein may be considered
together. Thus considered, the statement of facts is sufficiently specific to
bar another action, and that is all that is required under the justice of the
peace practice, which requires that the summons set forth "the nature of
the action," and which permits the parties to plead orally, and does not
require formal written pleadings. See sections 3184, 3189, N.M.
{*622} Statutes, Annotated, Code 1915;
Damhorst v. Mo. Pac. Ry. Co., 32 Mo. App. 350; Crolot v. Maloy,
2 N.M. 198.
{6} Furthermore, the matters
involved were litigated in the justice of the peace court without objection to
the alleged insufficiency of the statement as to the nature of the cause of
action, and the judgment was affirmed by the court by virtue of the rules
thereof, so that it would be too late to now raise the objection as to such
alleged insufficiency. See Jamison v. McMillen,
26 N.M. 231,
190 P. 726.
{7} In the district court the
affirmance of the judgment was had by virtue of rule 4 of practice for district
courts. 14 N.M. 711, 107 P. xi.
{8} It is claimed by
appellant, however, that said rule contravenes article 6, § 27, of our state
Constitution and section 324, Code 1915.
(1) "In appeals from a justice of the peace court
to the district court, rule 4 of the rules of practice for the district courts
(14 N.M. 711, 107 P. xi), providing that, if appellant, or plaintiff in error,
shall not procure the cause to be docketed on or before the third day of the
term at which the return shall be made, the appellee, or defendant in error,
may, on motion, have the cause docketed, and the appeal or certiorari
dismissed, or at his election, he may have the judgment of the justice court
affirmed, is in aid of and supplemental to the statute (section 3222) making it
the duty of the justice of the peace to file a transcript of his docket,
together with the papers in the cause, with the clerk of the district court in
all appeal cases, and section 3223, making it the duty of the clerk of the
district court to docket the cause, and is therefore not in conflict with such
statutory provisions, and not invalid."
{10} And we now hold that
said rule is not in conflict with the provisions of the Constitution and
statutes cited by appellant.
{11} Finding no error in the
record, the judgment is affirmed, and the cause remanded, and it is so ordered.