pear and plead within the 20 days allowed by statute, service having been had upon him within the county where the suit is pending, but such defendant has filed answer after the expiration of 20 days and before the default judgment has been rendered. And, third, can a default judgment be rendered against a defendant, assuming that he may plead after the expiration of the statutory time, because of his failure to serve a copy of such pleading upon the plaintiff or his attorney. [1] In this case the trial court set aside the default judgment, upon motion filed five months after it was rendered, upon the ground of irregularity. Appellant contends that section 4227, Code 1915, which provides: "Any judgment rendered in any court of this state, out of term time, upon default, may be set aside by the judge upon motion filed within sixty days of the date of the entry of such judgment, upon good cause shown to the judge or court in which such judgment is rendered" -is exclusive in so far as default judgments are concerned. This statute was enacted March 2, 1905. At that time the act of March 18, 1897 (section 4230, Code 1915), which reads as follows: "Judgments may be set aside for irregularity, on motion filed at any time within one year after the rendition thereof" -was in full force and effect. Both statutes are still in force. We cannot agree with appellant's contention. The object of the Legislature in the enactment of section 4227, supra, was to provide for the setting aside of default judgments "upon good cause shown," and this "good cause" may consist of many facts and circumstances which would not amount to an "irregularity." Section 4230 made ample provision for the setting aside of judgments for irregularities, but affords no relief from a default judgment where good cause may be shown for its vacation, other than an irregularity. Hence we conclude that a default judgment may be set aside for irregularity, on motion filed at any time within one year after its rendition. the default judgment herein, if such right existed, was by virtue of the provisions of the second subdivision of section 4188, which, in so far as pertinent, reads as follows: "In other actions, if no answer has been filed with the clerk of the court within the time specified in the summons or such further time as may have been granted, the court or judge, upon application of the plaintiff, must enter the default of the defendant and render judgment." This section of our Code is very similar to section 585 of the California Code of Civil Procedure, and was evidently taken therefrom. Subdivision 2 of section 585, Cal. Code, differs from the above only in so far as it requires the clerk to enter the default of the defendant, and authorizes the plaintiff to apply to the court at any subsequent term for the relief demanded in the complaint. The Supreme Court of California has frequently construed the above statute, and uniformly has held that an answer filed without leave of court after the time for answering has expired, but before the default has been entered, is not a nullity, but is, at most, an irregularity; that such an answer cannot be disregarded or treated as a nullity, so long as it remains on file; that plaintiff's remedy is by a motion to strike the answer from the files. In the case of Bowers v. Dickerson, 18 Cal. 420, the plaintiff moved to strike out an answer and demurrer because filed after the return day, and for judgment by default. The trial court overruled the motion, and upon review the Supreme Court said: "We see no error in the refusal of the court to set aside the answer, and allow the plaintiff to take judgment by default. It was. perhaps, not strictly regular to file the answer after the time for answering had expired without leave of the court; but, as the default of the filing was not a nullity. It was, at most, the defendant had not been entered, we think a mere irregularity, for which the answer might have been stricken out, but on account of which the plaintiff was not entitled to have it set aside, unless the court, in the exercise of its discretion, deemed such to be the proper course. The whole proceedings were in fieri, and our opinion is that the court had absolute another to be filed, or to pursue whatever power either to retain the answer or to permit course in that respect the justice of the case required. A defendant cannot for these purposes be considered in default until his default has been actually entered in accordance with the statute. There can be no doubt of the correctness of this view of the subject." [2] This, then leads us to the inquiry as to whether the judgment in this case was regularly rendered upon default where defendant had filed an answer in this case after his time to file the same had expired, but before such default judgment was rendered. Two days before the answer was filed, and In the case of Acock v. Halsey, 90 Cal. after the statutory time to file the same had 216, 27 Pac. 193, plaintiff instituted suit for expired, plaintiff procured from the clerk a the recovery of certain specified personal certificate of nonappearance, but this certi- property. Defendant, after the time to apficate has nothing to do with the merits of the pear and plead had expired, filed an answer case, as it was only evidence of the fact that in which he sought affirmative relief. at the time it was issued no appearance had Thereafter plaintiff filed a voluntary dismissbeen entered by defendant. Judgment of de-al of the action, upon which judgment of fault was not taken until three months there- dismissal was later entered. Defendant movafter. Your days after the certificate of non-ed to set aside the order of dismissal, which appearance was signed by the clerk defendant's answer was filed, and such answer was on file and undisposed of at the time the was sustained by the trial court. From this order plaintiff appealed. The court said: "But the answer was not filed until after the provides that an answer may be filed. But it could not be disregarded, or treated as a nullity, so long as it remained on file. The plaintiff's remedy was a motion to strike it from the files. 'It was, perhaps, not strictly regular to file the answer after the time for answering had expired, without leave of the court: but, as the default of the defendant had not been entered, we think the filing was not a nullity.'" See, also, State ex rel. Hannebohl v. Superior Court, 85 Wash. 663, 149 Pac. 16. In view of the construction placed upon the language of this section by the California court, prior to its adoption here, we conclude that an answer filed by a defendant, after the time to file the same has expired, and before judgment of default has been entered by the court, is not a nullity, and so long as such answer remains on file and undisposed of plaintiff is not entitled to a judgment by default, and the rendition of such judg ment constitutes an irregularity for which the judgment rendered may be set aside upon motion filed at any time within one year from the date of the rendition of such judgment. [3] The remaining point is likewise without merit. There was a dispute as to whether the plaintiff's attorneys had been served with a copy of the answer. But, assuming that they were not served, such failure in that regard would not warrant the taking of a default judgment where the answer or other pleading had, in fact, been filed. This question was settled adversely to appellant's contention by the Supreme Court of Nevada in the case of Maples v. Geller & Raffer, 1 Nev. 233. In construing a statute similar to our own in this regard the court said: served, when, in fact, it had been legally serv- answer, * If Finding no error in the record, the judgment of the trial court is affirmed; and it is so ordered. HANNA and PARKER, JJ., concur. (21 N. M. 728) NEW MEXICO-COLORADO COAL & MIN- (Supreme Court of New Mexico. (Syllabus by the Court.) (No. June 13, PROHIBITION 13 RIGHT TO REMEDY Where an application is made to this court for a writ of prohibition to restrain the district court from entertaining jurisdiction under section 2214, Code 1915, in proceedings supplementary to execution to enforce the collection of a judgment rendered against a corporation, and such original judgment has been vacated and set aside by this court on appeal, and a new judgment ordered entered by the district court, the original execution issued upon the first judgment becomes functus officio; hence it is to be presumed that the district court will not proceed further, under such supplementary proceedings, in aid thereof, and the application for the writ will be denied. [Ed. Note.-For other cases, see Prohibition, Cent. Dig. § 62; Dec. Dig. 13.] "We think the point that no judgment should have been rendered while the answer remained on file and undisposed of is well taken. The statute requires an answer to be filed and served; but it does not require that there should be any evidence of service on the answer. In this respect it is very different from a complaint. The complaint must be served unless service be waived, and proper evidence of that service, or waiver of service, brought before the court before it will assume jurisdiction of the defendant. But, when defendant has filed his answer, the court has jurisdiction of the person, and no evidence of service of the answer is necessary to enable the court to exercise all its powers over the parties. The requirement that the answer shall be served is for the convenience of the opposite party, and not to confer jurisdiction on the court. It is not then necessary, although it might be more regular, for the answer to show evidence of service on the plaintiff or his attorney. If, then, it is not necessary that the answer should show service, the court would not, in the first instance, be justified in treating an answer as a nullity when it did not show service. Nor do we think the court would be justified in doing it upon an ex parte affidavit. An absolute ents. personal service of an answer is never required. It may be served by sending by mail or leaving it at the office of the plaintiff's attorney. The mails frequently miscarry. A E. Gano, partners doing business under the lawyer may well overlook a paper left on his firm name "Rock Milling & Elevator Comtable, and not be aware such paper was ever left there. In such case he might innocently pany," obtained a judgment against the petimake an affidavit that the answer had not been tioner in the district court of Colfax county Application for writ of prohibition by the New Mexico-Colorado Coal & Mining Company, a corporation, against the Eighth Judicial District Court of the State of New Mexico and others. Writ denied. Morrow & Alford, of Raton, J. G. Northcutt, of Trinidad, Colo., and E. P. Davies, of Santa Fé, for petitioner. H. L. Bickley, and A. C. Voorhees, both of Raton, for respond ROBERTS, C. J. J. R. Baker and George For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes judgment for defendants, plaintiffs appeal. See, also, 20 N. M. 230, 148 Pac. 494. lees. for the sum of $13,500, and costs. From this judgment the petitioner appealed to this court, without filing a supersedeas bond. Execution upon this judgment was issued at the instance of the judgment creditors, lants. James A. Hall, of Portales, for appelwhich was returned nulla bona, whereupon proceedings supplementary to execution were commenced, under section 2214, Code 1915, by such judgment creditors. The trial court, over objection, held that such judgment creditors were entitled to the remedy, and appointed one Henry Kiker as referee to conduct an examination regarding the property of the defendant. On February 14, 1915, petitioner filed its application in this court for writ of certiorari to bring up the record, and for a writ of prohibition restraining and enjoining the lower court and its officers from proceeding further under such supplementary proceedings, setting out various grounds wherein it challenged the jurisdiction of the court to so proceed. A temporary writ and order to show cause was issued. Thereafter, on April 29, 1915, this court modified the judgment entered in the original proceeding, reducing the amount of recovery to $9,000, and remanded the cause to the district court for further proceedings. Such being the status of the case, the original execution is functus officio; hence the district court presumably will not attempt to proceed further to enforce the same. ROBERTS, C. J. On April 6, 1914, an election was held in school district No. 30, Roosevelt county, N. M., to determine whether the bonds of said district in the sum of $5,000 should be issued for the purpose of building a schoolhouse in said district. In the election 59 votes were cast and counted for the issuance of the bonds, and 58 votes were cast and counted against the issuance of the bonds. The appellants, among other things, in their second amended complaint, alleged that one vote cast and counted in said election for the issuance of the bonds, to wit, the vote of Willie Mae Culberson, now Elliott, was illegal, in that the said Willie Mae Culberson was not a resident of the said school district, and was not a qualified voter at said election; that on account of said illegal vote the majority of the qualified electors and voters of said district did not vote for the issuance of the bonds in said district; that the result of the election as declared by the directors of said district was erroneous and illegal; and prayed that the defendant treasurer of Roosevelt county be enjoined from negotiating and selling the For reasons stated, the writ will be de- bonds issued by the directors upon said elecnied; and it is so ordered. -"RESIDENCE." "Residence" is largely a question of intention. Hence, where an unmarried woman, over 21 years of age, who is dependent upon her own earnings for her support, accepts employment in the public schools of a given town and takes up her residence therein, with the intention of remaining there and making such town her home so long as she received employment there, or until she has an opportunity to better her condition in life by accepting a more lucrative position in some other place, she is a resident of such town or voting precinct in which she lives, and, other requirements of the law not prohibiting, she is entitled to vote at an election in such district to determine whether bonds shall be voted for a school building. [Ed. Note. For other cases, see Elections, Cent. Dig. §§ 67, 68, 70; Dec. Dig. 72. For other definitions, see Words and Phrases, First and Second Series, Residence.] Appeal from District Court, Roosevelt County; John T. McClure, Judge. Action by William D. Klutts and others against Moses B. Jones and others. From tion, and that the bonds be declared void and canceled. The appellees denied that the vote of said Willie Mae Culberson was illegal, and contended that she was a resident of said district at the time of said election, and entitled to vote therein. This issue was tried before Hon. John T. McClure, District Judge, sitting within and for Roosevelt county, on the 23d day of June, 1915, and resulted in a finding and judgment for the defendants. From the judgment of the district court the appellants have prosecuted this appeal. The only question of inquiry on the appeal is whether or not the vote of Willie Mae Culberson was illegal. The sole question to be determined by this appeal is as to whether there is substantial evidence to support the finding of the trial court that Willie Mae Culberson, now Elliott, was, at the time of such election, a qualified elector of the Taiban voting precinct. In the case of Klutts et al. v. Jones et al., 20 N. M. 230, 148 Pac. 494, the question of the right of women, possessing the qualifications required by section 1, art. 7, of the Constitution, to vote at elections held for the purpose of voting bonds for the construction of a school building was resolved in the affirmative. The question here for determination is, Had Willie Mae Culberson "resided" within the Taiban voting precinct 30 days prior to this KLUTTS v. JONES 491 er or not a student at an institution of learn- question of fact; that if a student have a father election, for it is conceded that she had re- [ sided within the state for 1 year and within the county of Roosevelt 90 days, as required by said section 1, art. 7, of the Constitution. The evidence shows that she was more than 21 years of age in September, 1913, at which time she signed a contract with the directors of such school district to teach the Taiban school for the term beginning in September, 1913; that she had, for 4 years prior thereto, attended the Normal University at Las Vegas, N. M., her tuition and board having been provided for by her parents. She says that when she contracted to teach at the Taiban school, she took up her residence at Taiban, intending to make that place her permanent home, so long as she was there employed. When she went to Taiban she took all of her personal belongings with her, and says that she did not expect to call upon her parents for further financial assistance. In other words, she intended to make her own living, and did not expect to contribute toward the support of her father's family or to receive aid from them. She became ill with typhoid fever shortly after she went to Taiban, and was taken to Portales by her mother while unconscious, and was there cared for until she recovered, which was apparently some time in November. While she was in Fortales an election was held for the purpose of locating a county high school, in which both Portales and Taiban were seeking to secure such school. She worked at the polls during the day for the location of said school at Taiban, but did not vote, although asked to do so, because, she stated, that her residence was in Taiban and she had no right to vote in Portales. In the summer of 1914 she visited in its true aspect. The fact that one is a stu"These authorities, we think, present the law her parents in Portales for a week or so, dent in a university does not of itself entitle and then went to Las Vegas to attend the him to vote where the university is situated, nor summer normal, returning to Taiban in Au- does it prevent his voting there. gust or September and teaching school there where he is habitually present, and to which, where he has his established home, the place He resides the following term. She was married in Tai- when he departs, he intends to return. The fact ban, at her home there, to a Mr. Elliott, and that he may, at a future time, intend to remove after her marriage she went with her hus- will not necessarily defeat his residence before band to his home in Chaves county. The that he should have the intention of always rehe actually does remove. above afforded substantial evidence of the maining, but there must coexist the fact and It is not necessary fact that the voter in question was legally the intention of making it his present abiding entitled to vote at such election, and the find-place, and there must be no intention of presenting of the trial court in this regard will not ly removing." be disturbed here. held to be an abode which the party does not in"In Dale v. Irwin, 78 Ill. 170, the court said: "What is "a permanent abode"? tend to abandon at any future time? This, it Must it be for a country whose people and characteristics seems to us, would be a definition too stringent in this state can say, wherever he may be placed, are ever on the change. No man in active life This is and ever shall be my permanent abode. It would be safe to say a permanent abode, in than a domicile, a home, which the party is at the sense of the statute, means nothing more liberty to leave, as interest or whim may dicchange it.' tate, but without any present intention to The case of Pedigo v. Grimes, 113 Ind. 148, 13 N. E. 700, in which Judge Elliott wrote the opinion of the court, is also very instructive. The court says: Appellant argues that, because the witness testified that she did not intend to remain in Taiban should she find a situation in some other place that suited her better, or should effect a change of domicile, there must be in"It is said by appellant's counsel that, 'to she fail to secure employment in the schools tention and act united-the fact of residence and at that place, she was not a resident of such the intention of remaining.' In support of this voting precinct within the meaning of the proposition, counsel cite McCrary, Law of ElecConstitution. This is the extreme view, Com. 431; Astley v. Capron, 89 Ind. 167; Cultions, 39, 40; Cooley, Const. Lim. 604; 2 Kent, which finds some support in the eariier cas- bertson v. Board, etc., 52 Ind. 361; McCollem es. In the case of Berry v. Wilcox, 44 Neb.y. White, 23 Ind. 43; Maddox v. State, 32 Ind. 82, 62 N. W. 249, 48 Am. St. Rep. 706, the court says: "The older cases and some of the modern ones require as an essential element the animus manendi, and construe this term as meaning an intention of always remaining.' 111. The counsel's statement is doubtless an ac- it is for the time the home of the voter to the exclusion of other places. Judge Cooley says: 'A person's residence is the place of his domicile, or the place where his residence is fixed without any present intention of removing therefrom.' Cooley's Lim. (5th Ed.) 754. Judge Story makes substantially the same statement of the rule. Conflict of Laws, § 43. "In the case of Cessna v. Meyers, reported and strongly approved by Judge McCrary, it was said: A man may acquire a domicile, if he be personally present in a place and elect that as his home, even if he never design to remain there always, but design at the end of some short time to remove and acquire another. A clergyman of the Methodist Church who is settled for 2 years may surely make his home for 2 years with his flock, although he means, at the end of that period, to remove and gain another.' McCrary, Elections, p. 496; Id. § 38. This principle was applied to the case of a student of Andover College, in Putnam v. Johnson, 10 Mass. 488, where it was said: 'A residence at a college or other seminary, for the purpose of instruction, would not confer a right to vote in the town where such an institution exists, if the student had not severed himself from his father's control, but resorted to his house as a home, and continued under his direction and management. But such residence will give a right to vote to a citizen not under pupilage, notwithstanding it may not be his expectation to remain there forever.' In this instance, the citizens, having taken up a residence in Bloomington and having no other home, were entitled to vote there, although they may not have intended to remain there always. It is frequently said in the books that a man must have a home somewhere, and it is agreed that this home is at the place where he is bodily present with the intention of making it his domicile, although he may have in view a change of residence at some future time. Cooley, Const. Lim. 754; McCrary, Elections, § 39." These authorities dispose of appellant's contention in this case. Were this not the true rule, many people in this state would be deprived of the right to vote. Take, for example, a railroad employé who is sent by the company from place to place as his services are required, could it be said that he was not entitled to vote in a given place where he was employed, and where he lived, and had resided for the requisite time, because, perchance, he expected at some future time to be assigned to some other place? Another example is afforded by Methodist ministers, referred to in the excerpt from McCrary on Elections. It is commonly known that they are only assigned to a given change for a period of 1 year, at the end of which period they may be reassigned to some other charge or returned to the same one. Certainly they can have no present intention of making the place of their assignment their permanent home, but they do intend, as did the witness in this case, to make the place of their work their home until some event transpires which works a change of residence. The question of whether a person is a resident of one place or another is largely a question of intention, and, where the intention and the acts of the party are in accord with the fact of residence in a given place, there can be no doubt of the fact that such party is a bona fide resident of the place where he intends to and does reside, and that he has the right to exercise all the rights and privileges accorded actual residents of such place, provided he comes within the provisions of the law regulating such rights. Here the voter's intention was to make Taiban her home. She was over 21 years of age, and was making her own way in the world. She had the right to select the place of her choice as her home. Under the law she owed no further duty to her parents, nor they to her. She was free to make her home where she chose, and, having elected to live in Taiban as her home, and claiming none other, she had the right to vote in the election held, because she came within all the other provisions of the law regulating the right to vote. Counsel for appellant argues that the voter's testimony was overcome by the evidence of the witness Wheeler, who was the railroad ticket agent at Taiban, who testified that upon one occasion, when Miss Culberson had completed a school term at Taiban, she asked for a ticket to Portales, and in reply to an inquiry as to where she was going, replied, "I am going home." But this proves nothing, for it is very common for men and women, who have families and have long had an established residence at some other place, to say they are "going home" when speaking of an intended visit to father and mother, or to the "old home place." Upon the occasion referred to the daughter went to Portales and visited her father and mother for 3 or 4 days, and then went on to Las Vegas, where she attended the normal school during the summer term. After the school term there was completed she again spent a week or so with her parents, and then returned to Taiban, where she resumed her work of teaching. The evidence in this case amply justified the finding by the trial court that Miss Culberson, now Mrs. Elliott, was a duly qualimust be affirmed; and it is so ordered. fied voter at such election, and the judgment |