Robertson v. Mine & Smelter Supply Co.

110 P. 1037, 15 N.M. 606

Opinion

■OPINION OP THE COURT.

PARKER, J.

It appears that a suit was brought to foreclose a material man’s lien upon a mining claim and decree of foreclosure was awarded. The appellants, owners of the property, were not served with process of any kind. Hpon a notice of a proposed sale under the decree of foreclosure appearing in the local newspaper, the appellants brought an action to enjoin the sale. The court below refused tbe injunction and dismissed tbe complaint, from wbicb judgment appellants appeal.

1 Tbe foreclosure proceeding plainly violated tbe “due process of law” clause of tbe 14tb amendment of tbe Constitution of tbe United States. Tbe essential elements of due process of law, as applied to matters of tbis bind, are notice and opportunity to be beard. Simons v. Craft, 182 U. S. 427, 436.

Tbe judgment of foreclosure was, therefore, absolutely void as against tbe appellants, tbe owners of tbe property.

2 2. Injunction was tbe proper remedy of appellants and should have been awarded against tbe sale. Mining and Smelting Co. v. Finch, 6 Colo. 214; 30 Cent. Dig., Judgment, sec. 793; 23 Cyc. 993; Remer v. McKay, 35 Fed. 86.

For the reasons stated tbe judgment of tbe court below will be reversed and tbe cause remanded with instructions to reinstate tbe complaint and award permanent injunction against tbe sale, and it is so ordered.