Albuquerque National Bank v. Second Judicial District Court

OPINION

MOISE, Justice.

In an action wherein Anita C. Scheer sued Frank W. Scheer for divorce, the district court of Bernalillo County held Anita C. Scheer in contempt of court and ordered her property impounded to satisfy any judgment for damages which it might enter against her.

Petitioner is the trustee of the Anita C. Scheer Trust, of which Anita C. Scheer is the beneficiary. The property of the trust was attached, but thereafter the attachment was dissolved on motion of petitioner. Nevertheless, the court, in the same order, directed petitioner not to make any disbursements from the trust to the beneficiary. As authorized by Art. VI, Sec. 3, N. M.Const., and under Supreme Court Rule 24(7) (§21-2-1(24) (7), N.M.S.A.1953) we issued our writ of certiorari to the district court to review the action.

We are here called on to determine if certiorari is an appropriate remedy and, if so, whether the trial court proceeded without jurisdiction, in excess of its jurisdiction, or abused its discretion, as claimed by petitioners. In Morris v. Apodaca, 66 N.M. 421, 349 P.2d 335 (1960) we recognized that certiorari will generally lie “in two classes of cases, (1) whenever it is shown that the inferior court or tribunal has exceeded its jurisdiction; (2) whenever it is shown that the inferior court or tribunal has proceeded illegally, and no appeal is allowed or other mode provided for reviewing its proceedings.”

The record discloses that petitioner was not a party to the proceeding in Scheer v. Scheer, in the district court of Bernalillo County, except that prior to having the writ of attachment served upon it, two writs of garnishment had been served, both of which it had duly answered. Respondent, without supporting authority, argues that petitioner having been served, and having answered as garnishee, the court thereby acquired jurisdiction over it and, thereafter, when, the attachment was dissolved, this jurisdiction would continue and would support the order here being attacked.

The argument advanced is generally that § 26-1-17(111), N.M.S.A.1953, which provides for the manner of serving writs of attachment, provides for summoning as “a garnishee” a person in whose hands personal property of various kinds being attached may be found. If we concede, for the sake of argument, that this may be true, what is the situation which exists when the writ has been discharged? Certainly, the right to order the garnishee to perform or desist from performing any particular act would seem to be thereby terminated. Neither do we perceive how the fact that petitioner is in court on other garnishments can furnish any support for orders apart from those garnishments.

What we have said is, to our minds, true as to the jurisdiction obtained over petitioner by the attachment. When it was dissolved, the right of the court to control petitioner or the property being administered by it terminated for all purposes. The cases cited and relied on by respondent all involve the right of the court to reach by attachment property held in trust, and to acquire jurisdiction over trustees. We are not here concerned with the question whether the attachment was properly dissolved. The fact is that dissolved it was, and the effect of this action was to terminate the court’s jurisdiction over the res and over the petitioner.

In Elwess v. Elwess, 73 N.M. 400, 389 P.2d 7 (1964), we stated that “The word ‘jurisdiction’ is a term of large and comprehensive import.” We have also had occasion to observe situations arise in cases where a court has jurisdiction both of the parties and subject matter, but its action is in excess of that jurisdiction. See State ex rel. Miller v. Tackett, 68 N.M. 318, 361 P.2d 724 (1961). Also, compare State ex rel. Kermac Nuclear Fuels Corp. v. Larrazolo, 70 N.M. 475, 375 P.2d 118 (1962), and State ex rel. State Tax Commission v. First Judicial District Court, 69 N.M. 295, 366 P.2d 143 (1961). If the court had not dissolved the attachment, we would have had one type of situation. However, having dissolved the attachment, by what theory did it have jurisdiction to enter an order such as it here attempted? The order was necessarily incidental to the writ of attachment. When the writ of attachment was dissolved, any other order arising out of the proceeding would likewise be without effect inasmuch as the trial court had no further jurisdiction. South Street Lumber Co. v. Dickerson, 235 La. 1062, 106 So.2d 513 (1958). The legal effect of quashing the writ was that the plaintiff took nothing ,by it. The result was no- different from that which follows a non-suit. Jaudel v. Schoelzke, 95 N.J.L. 171, 112 A, 328 (1920);. Landy v. Lesavoy, 20 N.J. 170, 119 A.2d 11 (1955); 6 Am.Jur.2d, Attachment, § 443; 7 C.J.S. Attachment § 470.

A very interesting and comparable situation was present in the case of Federal Land Bank of Omaha v. Jefferson, 229 Iowa 1054, 295 N.W. 855, 132 A.L.R. 1282 (1941). That was a case wherein an action in rem, aided by attachment and levy, was brought to collect a deficiency judgment obtained in a mortgage foreclosure. A demurrer of defendants was sustained, and plaintiff elected to stand on its demurrer, whereupon the petition was dismissed and plaintiff appealed. The question presented and disposed of by the court concerned the status of the litigation when an appeal had not been taken in two days, as required by the statute in order to preserve the attachment lien. Plaintiff conceded its lien was lost, but argued its right to appeal. The court agreed with defendants’ contention that the attachment lien having' been lost, jurisdiction of the subject matter was lost, and no cause of action remained for determination on appeal. We quote the following language of the Iowa Supreme Court:

“ * * * We are disposed to the view and hold that appellees’ contention is well grounded, that the preservation of the lien was necessary to preserve jurisdiction of the subject matter of the litigation, the extinguishment of the lien ended the jurisdiction of the court over the subject matter of this litigation and, accordingly, there is nothing before us to be determined. Jurisdiction was originally secured through the levy of a writ of attachment against certain real estate in Pottawattamie County. Following such levy, however, the defendants entered general appearances. The court thereby secured jurisdiction of the person of each defendant herein. Appellant contends that, since the court has jurisdiction of the defendants, the loss of the attachment lien does not deprive the court of jurisdiction herein. However, it is necessary not only for the court to have jurisdiction of the parties, but also jurisdiction of the subject matter, and even though the court has jurisdiction of the parties, if it has no jurisdiction of the subject matter, it has nothing before it to determine. Schulte v. Great Lakes Forwarding Corp., 228 Iowa 1012, 291 N.W. 158.”

We do not consider whether an in personam order could have been entered here against petitioner. Our rule concerning the effect of the prayer in a petition differs from that in Iowa. See Chavez v. Potter, 58 N.M. 662, 274 P.2d 308 (1954). However, the proceeding wherein petitioner was involved was an attachment proceeding brought under our attachment statutes set forth in §§ 26-1-1 to 26-1-44, N.M.S.A. 1953. We see no provision in these sections for an order such as was here entered in the event a writ of attachment fe dissolved. The action wherein petitioner was summoned having been in attachment, and in rem,—the writ having been dissolved and no appeal taken from the court’s action in dissolving it, jurisdiction of the res was lost and no jurisdiction existed to support the order here complained of. Rosser v. Rosser, 42 N.M. 360, 78 P.2d 1110 (1938), as noted in Federal Land Bank of Omaha v. Jefferson, supra, is of interest but not in point. Clark v. Clark, 202 Ind. 104, 172 N.E. 124 (1930), cited by respondent, furnishes no support to its position, the proceedings there being in rem and specifically provided for by statute. Neither is Tuttle v. Gunderson, 341 Ill. 36, 173 N.E. 175 (1930) any aid since the court there did not idecide the issue, it having become moot through the death of the debtor, beneficiary under the trust.

We note Bourgeious v. Santa Fe Trail Stages, 43 N.M. 453, 95 P.2d 204 (1939), cited by both parties. This case discusses at some length the requirements of service of notice in order that a court may acquire jurisdiction. It in no way discusses the effect of entering an order as was done here, while at the same time dissolving the writ of attachment.

We are impressed that the action of , the trial court whereby it attempted to direct petitioner with reference to disbursements, even though the attachment had been dissolved, was without jurisdiction or in excess of the court’s jurisdiction. Further, this is a case where the remedy of certiorari will lie under the rule as announced in Morris v. Apodaca, supra, and petitioner proceeded properly. Compare State ex rel. Stewart v. Blair, 357 Mo. 287, 208 S.W.2d 268 (1948); Hargraves v. Hamilton Nat. Bank, 27 Tenn.App. 655, 184 S.W.2d 397 (1944). We have not overlooked respondent’s argument that Anita C. Scheer is the real party in interest and, since she has been held in contempt of court and the appeal is intended to avoid the penalty invoked below, we should refuse to entertain the writ. Whatever may be the merits to this approach in a proper case, see 49 A.L.R.2d 1425 (1956), we are not convinced that it should be applied in a case where a court has exceeded its jurisdiction in an effort to enforce a penalty imposed in the contempt proceeding. No case has been called to our attention where such a rule has been followed under circumstances comparable to those here present.

The writ heretofore issued is made permanent.

It is so ordered.

CHAVEZ, C. J., and COMPTON and CARMODY, JJ., concur.