Gonzales v. Gallegos

10 N.M. 372, 10 Gild. 372

Opinion

McFIE, J.

The questions presented by this record have been passed upon and decided by this court adversely to the contention of appellant, in the cases of Bull v. Southwick, 2 N. M. 321; Vigil v. Pradt, 5 N. M. 161; and, therefore, are not now open questions, unless they become such by the enactment of the Code of Civil Procedure. In the case of Bull v. Southwick, 2 N. M. 321, the court, in construing a statute identical in terms with the statute now under consideration, said:

Ptrai/ro officer: election contest: nature of proceeding. “It is also my opinion that the very object of the statute in regard to the pleadings and practice in contested election cases, is to afford and at the same time to compel the observance of a speedy mode of conducting and terminating such cases. Its language is plain and free from all ambiguity. There is no room for mistaking its purport and meaning, and I can not conceive of any reasonable excuse for not following its provisions by either party. The statutory provisions as to the time of filing and serving the notice of contest, answer and reply are in effect statutes of limitation, taking from the judge all discretion as to extending the time.”

The statutes relating to election contests in this Territory have been practically the same, since their first enactment, in 1874, so far as the provisions now involved are concerned. The sections involved in this case read as follows:

“Section 1729. The respondent shall file his answer to the notice of contest, and serve a copy thereof on the contestant within twenty days from and after the service of such notice of contest upon him, exclusive of the day of such service; and any material fact alleged in the notice of contest, not specifically denied by the answer with the time aforesaid, shall be taken and considered as true.”*

“Section 1732. 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.”

Answer; stricken out when. In 1889 these statutes were considered by this court in the case of Vigil v. Pradt, 5 N. M. 161. In that case service of the answer was attempted, but not made on the contestant within twenty days after the service of notice of contest, and there was also a motion made by respondent asking leave to serve a copy of the answer to the notice of contest, which motion was refused, as was done in the case at bar. Also in that case, the answer of respondent was stricken from the files, and judgment rendered in favor of the contestant upon the averments contained in the notice of contest as was done by the district court in the case at bar. In deciding the case and re-examining the case of Bull v. Southwick, the court said:

“The plain language of the statute (section 1235), (now section 1729) is: ‘The respondent shall file his answer to the notice of contest, and serve a copy thereof on the contestant within twenty days,’ etc. There is no ambiguity about this phraseology. It requires, not the filing alone, but both the filing and service by copy. Should the court have permitted service asked at a later day, the plain word of the statutes are that service shall be made in twenty days — not twenty days or as soon as can be thereafter, or at some other time, but within twenty days. If this were an original and open question, to be now decided by the court for the first time, the argument maintaining the statute to be mandatory would be considered as of great force. The pleadings and practice are fully provided for in the statutes, and the same in all particulars specified, so that the proceeding is a special one and complete within itself. The remarks made by Mr. McCrary, in his work on Elections (section 392), are applicable here: ‘Promptness in commencing and prosecuting the proceedings is of the utmost importance, to the end that a decision may be reached before the term has wholly or in great part expired. * * * * Believing the construction given the statute in Bull v. Southwick to be founded in sound principles, it is our duty to follow it.”

But it is contended, on behalf of the appellants, that an election contest is a “civil action” within the meaning of the Code of Civil Procedure enacted in 1897, that the code, with its liberality as to practice and amendments, is applicable in the trial of such a case, and upon this basis, it is urged by appellants’ counsel with considerable ingenuity and force that the law laid down in the decisions of this court above referred to, are not in point since the adoption of the code. The construction given the statutes providing for contesting elections by this court in the cases referred to is certainly binding upon the court, as there has not been any change in the statutes since those decisions were rendered, at least, as to the time, manner, and by and upon whom service of notice of contest, answer and reply shall be made. In this case, this court held the statute now under consideration to be mandatory wherein it provides 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.” It will be observed that the notice of contest, answer and reply are all to be served in the same manner, and that is, as process is served. Process in a civil or common law action means the summons or other writ by the service of which jurisdiction of the person is obtained. The service of process is practically the same under both the common law and the code, except in cases of non-residence. The sheriff of the county or other officer makes services of process. Section 2685, subsection 22, is as follows: “The summons may be. served by the sheriff of the county where the defendant may be found.” Subsection 23: “The summons shall be served in the manner now provided by law, for the service of process in actions at common law.”

AfeavetomeaS-swer;. denied, It is true there is a vague provision in subsection 23 requiring an affidavit as to service when made by other than an officer, but this can not be held to dispense with the service of a qualified officer in the service of process, except in possible cases where the proper officer is absent or disqualified, and this does not vary ^ ruje ag tQ servjce 0£ process. If, therefore, the law required a copy of the answer in this case to be served upon the contestant within twenty days from and after the service of such notice of contest upon him, and such service was not made, the law requiring such service being mandatory, the court did not err in overruling the motion of the contestee for leave to serve a copy of his answer upon the contestant after the expiration of the twenty days, allowed by law, had expired. Counsel for appellants refer us to the following provisions of the code as supporting this contention: “All service of papers when the party to be notified has appeared by attorney, shall be made upon the attorney.” This provision refers to papers in the case, and has no reference to the service of process, or even papers in special proceedings which the statute requires to be served as process. It does refer to motions and pleadings in the ordinary actions at law to which the code applies, but it does not apply to such papers as are designated process, under the code. The statute providing for contesting elections for county officers, and the proceedings thereunder specifically requires the answer to be served as process, in the same manner as the notice of contest which gave the court jurisdiction of the respondent, and it would be idle to contend that the notice of contest could be served upon the “attorney” under this provision of the code. The answer in this case was not served as the law required either before or after the adoption of the code, and the court properly denied the motion of the contestee in the court below, and gave judgment in favor of the contestant upon the facts alleged by the contestant.

The consideration of this case might, with propriety, end here, but in view of the earnest contention of counsel for the appellants, that the Code of Civil Procedure is applicable to this case and that the court below should have been governed by its liberal rules as to amendment and the exercise of discretion and should have extended the time of service, we have determined to examine the merits of this contention.

Subsection 179 of the code provides as follows: “The former practice in law and equity shall be retained in all cases and proceedings not comprehended within the terms and intent of this code.” This section discloses that in the mind of the framers of the Code, there might be actions and proceedings “not comprehended within the terms and intent of this code.” That there were such is plain from the provisions of subsection 175 specifically exempting the actions of habeas corpus, mandamus, prohibition and quo warranto from the operation of the code and also the actions of replevin and attachment, except as to the form of the action. Thus it would seem clear that it was the intention- of the legislature to limit the operation of the code to the ordinary and usual actions known to the common law, and exclude from its operation all those extraordinary actions and proceedings, providing summary remedies wholly inconsistent with the liberal provisions of the code practice and the delay incident thereto. It is true that election contest proceedings are not specifically exempted, as was habeas corpus, mandamus and other unusual actions, but that was unnecessary, because, it was not an action known to the common law, as were actions of quo warranto, mandamus and the others specifically exempt. It was because those actions were known to the common law, that they were specifically exempted from the operation of the new and liberal code of practice which it was realized was wholly inapplicable to those summary remedies. The statutory proceeding for contesting elections is a comparatively recent and special proceeding of a necessarily summary nature. This proceeding, while in some respects it is similar to the action of quo war-ranto, it does not supercede nor destroy that remedy. It is a contest between individuals usually in which the public may have little or no interest, but the public have the remedy of quo warranto by which their rights may be adjudicated. In the cases of Bull v. Southwick and Vigil v. Pradt, this court held: “This statutory proceeding between rival candidates alone is a special proceeding, complete in itself, conferring special jurisdiction on the district court, and to which the general rules and law of the court as to time of pleading and the discretion of the district judge in extending the time, do not apply.” * * * * “Experience has demonstrated that, without some compulsory mode as to the time of making up issues and their trial in contested election cases, subterfuges and delays might and would be successfully resorted to, so that a final determination could not be reached before the term of office would expire.” This language if applied to practice under the code would be all the more forcible, for it will be conceded no doubt, that the summary nature of this proceeding as indicated in the above cases, would be practically destroyed if the provisions of the code were adopted as the rule of practice. Obviously then, this proceeding is one of those referred to in subsection 179, as “not comprehended within the terms and intent of this code,” and as to which “the former practice is to be retained.”

From the views herein expressed it follows that the learned judge who tried these cases in the court below did not err in conforming strictly to the terms of this statute and the former construction of this court, as to the proper practice under it. There being no error disclosed by the record, the judgment of the lower court is affirmed.

Parker and Crumpacker, JJ., concur.