Devlin v. State Ex Rel. New Mexico State Police DepartmentDevlin v. State Ex Rel. New Mexico State Police Department
- Reporters:
- ,
- Before:
- Walters
Lead Opinion
OPINION
WALTERS, Justice.In a forfeiture proceeding following inpoundment of petitioner’s automobile and the cash and contraband found therein, the trial court ruled that the automobile was forfeited to the State. Petitioner filed his notice of appeal in a timely manner and, within the period allowed by statute, moved for a stay and supersedeas, which was granted by the district court. Meanwhile, without notice to the court or petitioner, and on the day after petitioner filed his notice of appeal, the State obtained from the New Mexico Motor Vehicle Division a New Mexico title to the vehicle issued to the Department of Public Safety.
In a memorandum opinion the court of appeals granted the State’s motion to dismiss the appeal, concluding that execution upon the judgment by the State, in having the vehicle retitled, deprived the trial court of jurisdiction to grant the stay and supersedeas, and likewise deprived the court of appeals from proceeding to hear the appeal. On that issue we reverse the court of appeals.
A forfeiture action traditionally is classified as an in rem proceeding. United States v. 66 Pieces of Jade and Gold Jewelry, 760 F.2d 970, 973 (9th Cir.1985). In rem jurisdiction has been asserted when the court has been able to exercise control over the defendant res. United States v. One Lear Jet Aircraft, 836 F.2d 1571, 1573 (11th Cir.), cert. denied, — U.S. -, 108 S.Ct. 2844, 101 L.Ed.2d 881 (1988); United States v. $79,000 in United States Currency, 801 F.2d 738, 739 (5th Cir.1986); Berlanti Const. Co., Inc. v. Republic of Cuba, 145 So.2d 256, 258 (Fla.Dist.Ct.App.1962), cert. denied, 152 So.2d 170 (Fla.1963); Willapa Trading Co., Inc. v. Muscanto, Inc., 45 Wash.App. 779, 783, 727 P.2d 687, 690 (1986). Courts have commonly held that when the res has been removed from their control, they have no jurisdiction to address the merits of the appeal in a forfeiture proceeding. See One Lear Jet, 836 F.2d at 1573; United States v. $2,490.00 in United States Currency, 825 F.2d 1419, 1420 (9th Cir.1987); 66 Pieces, 760 F.2d at 973; United States v. United States Currency in The Amount of $110,000.00, 735 F.2d 326, 327 (9th Cir.1984); see also Willapa, 45 Wash.App. at 783, 727 P.2d at 690. There is authority which suggests, however, that a court loses control over the res and thus jurisdiction to hear an appeal only when the res is removed from the territorial jurisdiction of the court. See One Lear Jet, 836 F.2d at 1573.
Ordinarily, it is incumbent upon the defendant to obtain stay of execution of the trial court’s judgment to prevent removal of the res from the control of the court and so to preserve jurisdiction for appeal. $79,000 in United States Currency, 801 F.2d at 739; 66 Pieces, 760 F.2d at 973; United States v. $57,480.05 in United States Currency, 722 F.2d 1457, 1459 (9th Cir.1984). If, however, the res has been released accidentally, fraudulently, or improperly from the control of the court, that kind of removal does not divest the court of in rem jurisdiction. $2,490.00 in United States Currency, 825 F.2d at 1420; United States v. Wingfield, 822 F.2d 1466, 1471 (10th Cir.1987), cert. dismissed, Boulder County Colorado v. United States, — U.S. -, 108 S.Ct. 1762, 100 L.Ed.2d 222 (1988); $79,000 in United States Currency, 801 F.2d at 739; $57,480.05 in United States Currency, 722 F.2d at 1458; Berlanti, 145 So.2d at 258. Several federal appellate courts recently have refused to accept divestiture of in rem jurisdiction simply because the res has been removed from the jurisdiction of the court. They have declared, instead, that in personam jurisdiction may exist concurrently with in rem jurisdiction, and they have asserted jurisdiction in forfeiture actions over parties who have appeared, regardless of the location of the res. See, e.g., Wingfield, 822 F.2d at 1471; Trans-Asiatic Oil Ltd., S.A. v. Apex Oil Co., 804 F.2d 773, 779 (1st Cir.1986); Farwest Steel Corp. v. Barge Sea-Span 241, 769 F.2d 620, 622 (9th Cir.1985), cert. denied, — U.S. -, 108 S.Ct. 1594, 99 L.Ed.2d 909 (1988); United States v. An Article of Drug Consisting of 4,680 Pails, 725 F.2d 976, 984 (5th Cir.1984). But see One Lear Jet, 836 F.2d at 1576-77. The rationale of those decisions rests on the proposition that reliance upon the location of the res within the court’s forum to confer jurisdiction is merely a long-standing fiction employed by courts to exercise jurisdiction over an absent defendant, and the same fiction is not necessary when there is no absent party; nor should it be utilized in an inverse manner, when only the res has been removed, to defeat jurisdiction over the party connected with the removed res who has personally appeared before the court. See, e.g., Trans-Asiatic Oil, 804 F.2d at 779.
Forfeitures are not favored at law in New Mexico, and “statutes are to be construed strictly against forfeiture.” State v. Ozarek, 91 N.M. 275, 573 P.2d 209 (1978). We have several procedural and statutory means for protecting against precipitate action after judgment by a prevailing party or a hasty decision by the fact finder. SCRA 1986, 1-062 (Rule 62) does not contemplate self-help executions on judgments.
Here, the district court rendered final judgment on February 26, 1988; notice of appeal was filed on March 23, and the petitioner filed for a stay of the judgment and for a supersedeas bond on March 30, one week later, well within the time limit of
We must conclude that the retitling of the vehicle was an improper attempt by the State to remove the res from the control of the trial court, and thus that action could not divest the court of its in rem jurisdiction over the case. The statutes relied on by the State,
We hold, consequently, that the district court was not divested of its jurisdiction by the State’s disdainful disregard of petitioner’s post-judgment protections; that the trial court therefore did have jurisdiction to enter the stay; and that the court of appeals likewise had jurisdiction to hear the appeal. Accordingly, we remand the matter to the court of appeals with direction to address the merits of this case.
IT IS SO ORDERED.
SOSA, Senior Justice and RANSOM, J., concur. SCARBOROUGH, C.J., and STOWERS, J., dissent.
Dissenting Opinion
(Dissenting).
I disagree with the majority opinion’s conclusion that “the re titling of the vehicle was an improper attempt by the State to remove the res from the control of the trial court.” The law clearly indicates that the execution on the judgment and removal of the res from the control of the court is not improper.
In conducting this forfeiture proceeding, the district court exercised in rem jurisdiction and the 1986 Volvo automobile was the res. See United States v. One Lear Jet Aircraft, 836 F.2d 1571, 1576-77 (11th Cir.1988). The power of the court derived entirely from its control over the res. Release or removal of the res from the control of the court ended the jurisdiction of the court, in accordance with this general rule. See United States v. $57,480.05 United States Currency and Other Coins, 772 F.2d 1457, 1458 (9th Cir.1984); American Bank of Wage Claims v. Registry of the District Court of Guam, 431 F.2d 1215, 1219 (9th Cir.1970). The only exception to this rule occurs when the res is released accidently, fraudulently or improperly. United States v. $2,490.00 in United States Currency, 825 F.2d 1419, 1420 (9th Cir.1987); United States v. $79,000 in United States Currency, 801 F.2d 738, 739 (5th Cir.1986). The release of the res without informing the claimant about the execution on the judgment does not render the release improper. See $2,490 in United States Currency, 825 F.2d at 1420; $79,-000 in United States Currency, 801 F.2d at 740; $57,480.05 United States Currency and Other Coins, 722 F.2d at 1458. Thus, the state’s action in the present case in retitling the vehicle should not be characterized as improper. Nor does the failure to notify Devlin of the execution on the judgment render the release improper. See $79,000 in United States Currency, 801 F.2d at 740. There is no requirement of notification.
Instead, it was incumbent upon Devlin, the claimant, to timely obtain a stay of the district court’s judgment to preserve jurisdiction for an appeal. See $57,480.05 United States Currency and Other Coins, 722 F.2d at 1458. This he failed to do. The state’s action in executing on the judgment removed the subject matter of the lawsuit from the control of the district court. That action destroyed the district court’s jurisdiction and ended any appellate jurisdiction. As a consequence neither this court nor the district court has the power to grant the relief that the claimant seeks.
Those cases cited in the majority opinion for the proposition that in personam jurisdiction may exist concurrently with in rem jurisdiction in forfeiture actions rely for in personam jurisdiction on either a statute, United States v. Wingfield, 822 F.2d 1466 (10th Cir.1987), or consent by a party, Trans-Asiatic Oil Ltd., S.A. v. Apex Oil Co., 804 F.2d 773 (1st Cir.1986); Farwest Steel Corp. v. Barge Sea-Span 241, 769 F.2d 620 (9th Cir.1985), or a substitute basis for the lawsuit, United States v. An Article of Drug Consisting of 4,680 Pails, 725 F.2d 976 (5th Cir.1984). In Wingfield, the court of appeals averred that Section 7426 of the Internal Revenue Code, granted the federal district court jurisdiction to order the Government to return the seized property or its equivalent, i.e., a money judgment. And the court concluded that because the district court had the power to order restitution by payment of an equivalent value, jurisdiction of the court had not been destroyed by release of the property to the Government. Wingfield, 822 F.2d at 1471-72. Likewise, in An Article of Drug Consisting of 4,680 Pails, the court concluded that jurisdiction existed because the action was really one for declaratory judgment.
While, in form the relief requested by the United States is the forfeiture and destruction of a specifically identified lot of Neo-Terra Powder, the action, in substance, seeks much more. The substantive character of the remedy sought in this case is not forfeiture and destruction of a specific lot of Neo-Terra Powder, but a declaration that Neo-Terra Powder is or is not a new animal drug.
An Article of Drug Consisting of 4,680 Pails, 725 F.2d at 984. To hold in forfeiture eases that in personam jurisdiction may co-exist with in rem jurisdiction is contrary to the traditional analysis of in rem jurisdiction. See One Lear Jet Aircraft, 836 F.2d at 1576-77.
Finally, the effect of the majority opinion is to grant a claimant a minimum sixty-day automatic stay of execution pending perfection of an appeal. This does not comport with the language in Rule 62, SCRA 1986, 1-062, or with that in
The appeal was properly dismissed by the court of appeals for lack of jurisdiction over the res.
SCARBOROUGH, C.J., concurs.