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pear and plead within the 20 days allowed by the default judgment herein, if such right statute, service having been had upon him existed, was by virtue of the provisions of within the county where the suit is pending, the second subdivision of section 4188, which, but such defendant has filed answer aft-in so far as pertinent, reads as follows: er the expiration of 20 days and before the “In other actions, if no answer has been filed default judgment has been rendered. And, with the clerk of the court within the time

specified in the summons or such further time third, can a default judgment be rendered

ed as may have been granted, the court or judge, against a defendant, assuming that he may upon application of the plaintiff, must enter plead after the expiration of the statutory | the default of the defendant and render judgtime, because of his failure to serve a copy of such pleading upon the plaintiff or his at-! This section of our Code is very similar torney.

to section 585 of the California Code of Civil [1] In this case the trial court set aside Procedure, and was evidently taken there. the default judgment, upon motion filed five from. Subdivision 2 of section 585, Cal. months after it was rendered, upon the Code, differs from the above only in so far as ground of irregularity. Appellant contends it requires the clerk to enter the default of that section 4227, Code 1915, which provides: the defendant, and authorizes the plaintiff to

"Any judgment rendered in any court of this apply to the court at any subsequent term state, out of term time, upon default, may be for the relief demanded in the complaint. set aside by the judge upon motion filed within the Supreme Court of California has fresixty days of the date of the entry of such . judgment. upon good cause shown to the judge quently construed the above statute, and uni. or court in which such judgment is rendered" formly has held that an answer filed with--is exclusive in so far as default judgments

out leave of court after the time for answerare concerned. This statute was enacted

ing has expired, but before the default has March 2, 1905. At that time the act of

been entered, is not a nullity, but is, at most, March 18, 1897 (section 4230, Code 1915),

an irregularity; that such an answer canwhich reads as follows:

not be disregarded or treated as a nullity, "Judgments may be set aside for irregularity,

so long as it remains on file; that plaintiff's on motion filed at any time within one year remedy is by a motion to strike the answer after the rendition thereof”

from the files. -was in full force and effect. Both statutes In the case of Bowers v. Dickerson, 18 are still in force.

Cal. 420, the plaintiff moved to strike out an We cannot agree with appellant's conten- answer and demurrer because filed after the tion. The object of the Legislature in the | return day, and for judgment by default. enactment of section 4227, supra, was to pro The trial court overruled the motion, and upvide for the setting aside of default judg-on review the Supreme Court said: ments "upon good cause shown," and this “We see no error in the refusal of the court “good cause" may consist of many facts and

fonts and to set aside the answer, and allow the plain

iff to take judgment by default. It was, percircumstances which would not amount to

| haps, not strictly regular to file the answer an “irregularity.” Section 4230 made ample after the time for answering had expired withprovision for the setting aside of judgments out leave of the court; but, as the defa

lefault of

the defendant had not been entered, we think for irregularities, but affords no relief from

the filing was not a nullity. It was, at most, a default judgment where good cause may a mere irregularity, for which the answer be shown for its vacation, other than an ir- might have been stricken out, but on account regularity. Hence we conclude that a de

of which the plaintiff was not entitled to have

it set aside, unless the court, in the exercise fault judgment may be set aside for irreg

of its discretion, deemed such to be the proper ularity, on motion filed at any time within course. The whole proceedings were in fieri, one year after its rendition.

and our opinion is that the court had absolut

power either to retain the answer or to permit [2] This, then leads us to the inquiry as

y as another to be filed, or to pursue whatever to whether the judgment in this case was course in that respect the justice of the case regularly rendered upon default where de- required. A defendant cannot for these purfendant had filed an answer in this case aft

poses be considered in default until his de

fault has been actually entered in accordance er his time to file the same had expired, but with the statute. There can be no doubt of before such default judgment was rendered the correctness of this view of the subject.” 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. Four days after the certificate of non

ed to set aside the order of dismissal, which appearance was signed by the clerk defend- was sustained by the trial court. From this ant's answer was filed, and such answer was order plaintiff appealed. The court said: on file and undisposed of at the time the “But the answer was not filed until after the

Ostr

provides that an answer may be filed. But it served, when, in fact, it had been legally servcould not be disregarded, or treated as a nulli- ed. It would certainly, then, be a very danty, so long as it remained on file. The plain- gerous practice to allow judgments to be entiit's reme dy was a motion

t from tered against defendants on ex parte affidavits the files. It was, perhaps, not strictly regu- that no answer had been served, where a suffilar to file the answer after the time for answer- cient answer was on file ; but, even admitting ing had expired, without leave of the court: there was the most indubitable proof that no but, as the default of the defendant had not answer was ever served, it would be a very been entered, we think the filing was not a harsh method of proceeding against the defendnullity.'"

ant to give judgment against him when he had

a good defense to the action, because his attorSee, also, State ex rel. Hannebohl v. Su ney was careless or inattentive to his business. perior Court, 85 Wash. 663, 149 Pac. 16. Such a practice might benefit careful, vigilant, In view of the construction placed upon

and attentive lawyers, but it certainly would

not do justice to litigants, and would be calthe language of this section by the California

culated to bring courts of justice into odium court, prior to its adoption here, we conclude and contempt. Besides, there is not the slightthat an answer filed by a defendant, after est reason or necessity for such practice. If the time to file the same has expired, and be

a lawyer neglects his duty in the service of an

answer, * * * the taxing of the costs of fore judgment of default has been entered | motion against the attorney or his client would by the court, is not a nullity, and so long correct the evil, without depriving defendant as such answer remains on file and undispos

of his right to a trial of the cause on the ised of plaintiff is not entitled to a judgment

sues joined. We think for this cause the judg

ment should be reversed.” by default, and the rendition of such judg.

Finding no error in the record, the judg. ment constitutes an irregularity for which

| ment of the trial court is affirmed; and it is the judgment rendered may be set aside

so ordered. upon motion filed at any time within one year from the date of the rendition of such judg | HANNA and PARKER, JJ., concur. ment.

[3] The remaining point is likewise without merit. There was a dispute as to wheth

(21 N. M. 728) er the plaintiff's attorneys had been served | NEW MEXICO-COLORADO COAL & MINwith a copy of the answer. But, assuming |

ING CO. V. EIGHTH JUDICIAL DIST. that they were not served, such failure in

COURT OF NEW MEXICO et al. (No. that regard would not warrant the taking of

1904.) a default judgment where the answer or (Supreme Court of New Mexico. June 13,

1916.) other pleading had, in fact, been filed. This question was settled adversely to appellant's

(Syllabús by the Court.) contention by the Supreme Court of Nevada | PROHIBITION 13 – RIGHT TO REMEDY in the case of Maples v. Geller & Raffer, 1 | ELIMINATION OF GROUNDS. Nev. 233. In construing a statute similar

Where an application is made to this court to our own in this regard the court said:

for a writ of prohibition to restrain the district

court from entertaining jurisdiction under sec"We think the point that no judgment should tion 2214, Code 1915, in proceedings supplebave been rendered while the answer remained mentary to execution to enforce the collection on file and undisposed of is well taken. The of a judgment rendered against a corporation, statute requires an answer to be filed and sery- and such original judgment has been vacated ed; but it does not require that there should and set aside by this court on appeal, and a be any evidence of service on the answer. In new judgment ordered entered by the district this respect it is very different from a com-court, the original execution issued upon the plaint. The complaint must be served unless first judgment becomes functus officio; hence service be waived, and proper evidence of that it is to be presumed that the district court will service, or waiver of service, brought before not proceed further, under such supplementary the court before it will assume jurisdiction of proceedings, in aid thereof, and the application the defendant. But, when defendant has filed for the writ will be denied. his answer, the court has jurisdiction of the [Ed. Note. For other cases, see Prohibition, person, and no evidence of service of the an- I cant Din

Cent. Dig. 8 62; Dec. Dig. O
60

13.] swer is necessary to enable the court to exercise all its powers over the parties. The re Application for writ of prohibition by the quirement that the answer shall be served is

New Mexico-Colorado Coal & Mining Comfor the convenience of the opposite party, and not to confer jurisdiction on the court. It is pany, a corporation, against the Eighth Junot then necessary, although it might be more dicial District Court of the State of New regular, for the answer to show evidence of Mexico and others. Writ denied. service on the plaintiff or his attorney. If, then, it is not necessary that the answer should Morrow & Alford, of Raton, J. G. Northshow service, the court would not, in the first cutt. of Trinidad, Colo., and E. P. Davies, of instance, be justified in treating an answer as a nullity when it did not show service. Nor"

Santa Fé, for petitioner. H. L. Bickley, and do we think the court would be justified in do A. O. Voorhees, both of Raton, for responding 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 at

ROBERTS, C. J. J. R. Baker and George torney. 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 | Puny,

tiv pany," obtained a judgment against the petimake an affidavit that the answer had not been / tioner in the district court of Colfax county

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

for the sum of $13,500, and costs. From this, judgment for defendants, plaintiffs appeal. judgment the petitioner appealed to this Affirmed. court, without filing a supersedeas bond. See, also, 20 N. M. 230, 148 Pac. 494. Execution upon this judgment was issued

George L. Reese, of Portales, for appelat the instance of the judgment creditors, lants. James A. Hall, of Portales, for appelwhich was returned nulla bona, whereupon lees

lees. proceedings supplementary to execution were commenced, under section 2214, Code 1915,

ROBERTS, C. J. On April 6, 1914, an elecby such judgment creditors. The trial court,

tion was held in school district No. 30, Roose. over objection, held that such judgment

velt county, N. M., to determine whether creditors were entitled to the remedy, and

the bonds of said district in the sun of $5,appointed one Henry Kiker as referee to con

000 should be issued for the purpose of buildduct an examination regarding the property ling a schoolhouse in said district. In the of the defendant.

election 59 votes were cast and counted for On February 14, 1915, petitioner filed its

the issuance of the bonds, and 58 votes were application in this court for writ of certi

cast and counted against the issuance of orari to bring up the record, and for a

the bonds. The appellants, among other writ of prohibition restraining and enjoin- I things, in their second amended complaint, ing the lower court and its officers from

alleged that one vote cast and counted in proceeding further under such supplement

said election for the issuance of the bonds, ary proceedings, setting out various grounds

to wit, the vote of Willie Mae Culberson, now wherein it challenged the jurisdiction of Elliott, was illegal, in that the said Willie the court to so proceed. A temporary writ

Mae Culberson was not a resident of the and order to show cause was issued. There- said school district, and was not a qualified after, on April 29, 1915, this court mod

| voter at said election; that on account of ified the judgment entered in the original

said illegal vote the majority of the qualified proceeding, reducing the amount of recovery | electors and voters of said district did not to $9,000, and remanded the cause to the vote for the issuance of the bonds in said district court for further proceedings. Such district; that the result of the election as being the status of the case, the original declared by the directors of said district execution is functus omcio; hence the disc was erroneous and illegal; and prayed that trict court presumably will not attempt to the defendant treasurer of Roosevelt county proceed further to enforce the same.

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.

tion, and that the bonds be declared void

and canceled. The appellees denied that HANNA and PARKER, JJ., concur.

the vote of said Willie Mae Culberson was

illegal, and contended that she was a resi(21 N. M. 720)

dent of said district at the time of said KLUTTS et al. V. JONES et al. (No. 1871.) election, and entitled to vote therein. This

issue was tried before Hon. John T. Mc(Supreme Court of New Mexico. June 13, 1916.)

Clure, District Judge, sitting within and

for Roosevelt county, on the 23d day of June, (Syllabus by the Court.)

| 1915, and resulted in a finding and judgELECTIONS E72-QUALIFICATIONS OF Voters ment for the defendants. From the judg- "RESIDENCE."

ment of the district court the appellants “Residence" is largely a question of inten- I have prosecuted this appeal. tion. Hence, where an unmarried woman, over 21 years of age, who is dependent upon her own í The only question of inquiry on the appeal earnings for her support, accepts employment in is whether or not the vote of Willie Mae the public schools of a given town and takes up Culberson was illegal. The sole question to her residence therein, with the intention of re-l be determined by this appeal is as to whethmaining there and making such town her home so long as she received employment there, or er there is substantial evidence to support until she has an opportunity to better her condi- the finding of the trial court that Willie Mae tion in life by accepting a more lucrative posi-Culberson, now Elliott, was, at the time of tion in some other place, she is a resident of

such election, a qualified elector of the Taisuch town or voting precinct in which she lives, and, other requirements of the law not prohibit ban voting precinct. In the case of Klutts ing, she is entitled to vote at an election in such et al. v. Jones et al., 20 N. M. 230, 148 Pac. district to determine whether bonds shall be

494, the question of the right of women, voted for a school building. [Ed. Note.-For other cases, see Elections,

possessing the qualifications required by Cent. Dig. 88 67, 68, 70; Dec. Dig. Om72. 'section 1, art. 7, of the Constitution, to vote

For other definitions, see Words and Phrases, at elections held for the purpose of voting First and Second Series, Residence.)

bonds for the construction of a school buildAppeal from District Court, Roosevelting was resolved in the affirmative. The County; John T. McClure, Judge.

question here for determination is, Had Action by William D. Klutts and others | Willie Mae Culberson “resided" within the against Moses B. Jones and others. From | Taiban voting precinct 30 days prior to this election, for it is conceded that she had re- In this case, the question was as to whethsided within the state for 1 year and within er or not a student at an institution of learnthe county of Roosevelt 90 days, as re- ing was a resident of the town in which such quired by said section 1, art. 7, of the Con- institution was located, and entitled to vote stitution. The evidence shows that she was at elections held there. The opinion is so more than 21 years of age in September, instructive upon the point here raised that 1913, at which time she signed a contract we quote at length therefrom: with the directors of such school district to “That what place is any one's domicile is a teach the Taiban school for the term begin- question of façt; that if a student have a father ning in September, 1913; that she had, for 4

e, Judge.

or living; if he remain a member of his father's

family; if he return to pass his vacations; if years prior thereto, attended the Normal | he be maintained by his father-these are strong University at Las Vegas, N. M., her tuition circumstances repelling a presumption of a and board having been provided for by her change of domicile. But if he be separated from

his father's family, not maintained by him; parents. She says that when she contracted

if he remove to a college town and take up his to teach at the Taiban school, she took up abode there without intending to return to his her residence at Taiban, intending to make former domicile-these are circumstances moro that place her permanent home, so long as

or less conclusive to show the acquisition of a

domicile in the town where the college is situatshe was there employed. When she went to

ed. The same view was taken in Sanders v. Taiban she took all of her personal belong- Getchell, 76 Me. 158, 49 Am. Rep. 606. The Suings with her, and says that she did not ex-preme Court of Ohio, quoting Story's definition pect to call upon her parents for further

of 'Domicile,' adds: 'It is not, however, neces

sary that he should intend to remain there for financial assistance. In other words, she in- all time. If he lives in a place with the intentended to make her own living, and did not tion of remaining for an indefinite period of time expect to contribute toward the support of as a place of fixed present domicile, and not as her father's family or to receive aid from

a place of temporary establishment, or for more

transient purposes, it is, to all intents and for them. She became ill with typhoid fever all purposes, his residence. Sturgeon v. Korte, shortly after she went to Taiban, and was 34 Ohio St. 525. taken to Portales by her mother while un

"In Dale v. Irwin, 78 Ill. 170, the court said:

"What is "a permanent abode"? Must it be conscious, and was there cared for until she

held to be an abode which the party does not inrecovered, which was apparently some time tend to abandon at any future time? This, it in November. While she was in Fortales an seems to us, would be a definition too stringent election was held for the purpose of locating

for a country whose people and characteristics a county high school, in which both Portales in this state can say, wherever he may be placed.

are ever on the change. No man in active life and Taiban were seeking to secure such This is and ever shall be my permanent abode. school. She worked at the polls during the It would be safe to say a permanent abode, in day for the location of said school at Taiban,

the sense of the statute, means nothing more

than a domicile, a home, which the party is at but did not vote, although asked to do so, liberty to lenye

liberty to leave, as interest or whim may dicbecause, she stated, that her residence was | tate, but without any present intention to in Taiban and she had no right to vote in change it.' Portales. In the summer of 1914 she visited

| “These authorities, we think, present the law

in its true aspect. The fact that one is a stuher 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. He resides

where he has his established home, the place gust or September and teaching school there

where he is habitually present, and to which, 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

he actually does remove. It is not necessary band to his home in Chaves county. The

that he should have the intention of always reabove afforded substantial evidence of the maining, but there must coexist the fact and 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 present

ly removing.” ing of the trial court in this regard will not

The case of Pedigo y. Grimes, 113 Ind, 148, be disturbed here.

13 N. E. 700, in which Judge Elliott wrote the Appellant argues that, because the witness

opinion of the court, is also very instructive. testified that she did not intend to remain in

The court says: Taiban should she find a situation in some

"It is said by appellant's counsel that, 'to other place that suited her better, or should

effect a change of domicile, there must be inshe 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 Elec

tions, 39, 40; Cooley, Const, Lim, 604; 2 Kent, Constitution. This is the extreme view,

Com. 431; Astley v. Capron, 89 Ind. 167; Culwhich 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. v. White, 23 Ind. 43; Maddox v. State, 32 Ind. 82, 62 N. W. 249, 48 Am. St. Rep. 706, the

111. The counsel's statement is doubtless an ac

curate one, but here the intention and the act, court says:

as the trial court found, did unite, and we think "The older cases and some of the modern ones this finding is fully sustained by the testimony require as an essential element the animus ma- | before the court. It is not necessary, however, nendi, and construe this term as meaning an in- / that there should be an intention to remain pertention of always remaining."

| manently at the chosen domicile; it is enough it

to 17 TN

it is for the time the home of the voter to the ex. , intends to and does reside, and that he has clusion of other places. Judge Cooley says: 'A the right to exercise all the rights and privperson's residence is the place of his domicile, or ieces accorded actual

ileges accorded actual residents of such place, the place where his residence is fixed without any present intention of removing therefrom.'

provided he comes within the provisions of Cooley's Lim. (5th Ed.) 754. Judge Story makes the law regulating such rights. Here the substantially the same statement of the rule. voter's intention was to make Taiban her Conflict of Laws, $ 43.

home. She was over 21 years of age, and "In the case of Cessna v. Meyers, reported and strongly approved by Judge McCrary, it was was making her own way in the world. She said: A man may acquire a domicile, if he be had the right to select the place of her choice personally present in a place and elect that as as her home. Under the law she owed no furhis home, even if he never design to remain there always, but design at the end of some short time

ther duty to her parents, nor they to her. to remove and acquire another. A clergyman of She was free to make her home where she the Methodist Church who is settled for 2 years chose, and, having elected to live in Taiban may surely make his home for 2 years with his as her home and claiming none other. She flock, although he means, at the end of that period, to remove and gain another. McCrary, nad the right to vote in the election neid, DeElections, p. 496; Id. § 38. This principle was cause she came within all the other provisions applied to the case of a student of Andover Col of the law regulating the right to vote. lege, in Putnam v. Johnson, 10 Mass. 488, where

Counsel for appellant argues that the votit was said: “A residence at a college or other seminary, for the purpose of instruction, would er's testimony was overcome by the evidence not confer a right to vote in the town where of the witness Wheeler, who was the railroad such an institution exists, if the student had not | ticket agent at Taiban, who testified that severed himself from his father's control, but resorted to his house as a home, and continued

| upon one occasion, when Miss Culberson had under his direction and management. But such completed a school term at Taiban, she asked residence will give a right to vote to a citizen for a ticket to Portales, and in reply to an not under pupilage, notwithstanding it may not inquiry as to where she was going, replied, be his expectation to remain there forever.' In this instance, the citizens, having taken up

“I am going home." But this proves nothing, a residence in Bloomington and having no other for it is very common for men and women, home, were entitled to vote there, although they who have families and have long had an esmay not have intended to remain there always. I to hlicher

| tablished residence at some other place, to It is frequently said in the books that a man must have a home somewhere, and it is agreed say they are "going home” when speaking or that this home is at the place where he is bodily | an intended visit to father and mother, or to present with the intention of making it his domi

the "old home place." Upon the occasion recile, although he may have in view a change of

ferred to the daughter went to Portales and residence at some future time. Cooley, Const. Lim. 754; McCrary, Elections, § 39."

visited her father and mother for 3 or 4 days,

and then went on to Las Vegas, where she These authorities dispose of appellant's

attended the normal school during the sumcontention in this case. Were this not the

mer term. After the school term there was true rule, many people in this state would be

completed she again spent a week or so with deprived of the right to vote. Take, for ex

her parents, and then returned to Taiban, ample, a railroad employé who is sent by the

where she resumed her work of teaching. company from place to place as his services

| The evidence in this case amply justified are required, could it be said that he was not

the finding by the trial court that Miss Cul. entitled to vote in a given place where he was

berson, now Mrs. Elliott, was a duly quali. employed, and where he lived, and had re

fied voter at such election, and the judgment sided for the requisite time, because, per

must be affirmed; and it is so ordered. chance, he expected at some future time to be assigned to some other place? Another ex

HANNA and PARKER, JJ., concur. ample is afforded by Methodist ministers, referred to in the excerpt from McCrary on Elections. It is commonly known that they

(29 Idaho, 310) are only assigned to a given change for a pe In re BLACKINTON'S ESTATE. riod of 1 year, at the end of which period

WOODWARD v. UTTER et al. they may be reassigned to some other charge or returned to the same one. Certainly they

(Supreme Court of Idaho. July 1, 1916.) can have no present intention of making the 1. EXECUTORS AND ADMINISTRATORS 315(4) place of their assignment their permanent

-DISTRIBUTION OF ESTATE-DECREE-MODI

FICATION. home, but they do intend, as did the witness

Where obvious mistakes and inconsistencies in this case, to make the place of their work | appear upon the face of a final decree of distheir home until some event transpires which tribution in the probate court and such errors works a change of residence.

are called to the attention of that court by a

proper motion to reopen the decree, the motion The question of whether a person is a res

should be granted and the decree reopened, tu ident of one place or another is largely a ques the end that the errors may be corrected and the tion of intention, and, where the intention

decree as a judicial act conform to the documenand the acts of the party are in accord with

tary and other evidence upon which it should be

based. the fact of residence in a given place, there

| [Ed. Note. For other cases, see Executors can be no doubt of the fact that such party and Administrators, Cent. Dig. $ 1305; Dec. is a bona fide resident of the place where he Dig. Om 315(4).]

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