262 P. 226 | N.M. | 1927
Lead Opinion
The district court, after trial without jury, found the intervention issue against Pomerenk, and rendered a money judgment against him and the sureties on his forthcoming bond, for the amount of Powell's indebtedness to Scheck, less what the latter had realized from the sale of goods attached and not claimed and taken by Pomerenk. The latter appeals from that judgment.
[1] Two errors are assigned: First, that the district court had no jurisdiction of the cause; and, second, that *130 he erred in giving a money judgment on the bond. The latter error, if such, is not available, since the question was not raised in the trial court. So we have only the question of the jurisdiction of the district court over the appeal.
[2] At the close of appellee's (plaintiff's) case, appellant raised the jurisdictional question by moving to dismiss the cause; no doubt intending his motion as one to dismiss the appeal. The ground of the motion was:
"That plaintiff has not proven that there was any jurisdiction in the lower court; has not proven that proper service was had upon Powell or any judgment rendered was of any value, and since the jurisdiction in this court to try de novo rests completely upon the jurisdiction acquired, if any, by the lower court, since they have not shown affirmatively that the lower court did have jurisdiction, this court has nothing to do but dismiss it."
This motion was overruled.
Appellant urges the well-established principles that, on appeal from a justice of the peace, the district court is to try the cause de novo; and that, if the former had no jurisdiction, the latter has none; and argues that, since the record fails to show jurisdiction obtained of Powell's person, the fact is fatal to the appeal.
Appellee contends that appellant is not concerned in the issue between appellee and Powell; and that, since there is no question as to jurisdiction over appellant, the motion was properly overruled, and the present contention is without merit.
Appellant cites Geren v. Lawson,
The argument is unsound. There is no such analogy, as appellant suggests. A garnishee is a defendant. He can be held to liability only on showing both that he owes the defendant and that the defendant owes the plaintiff. An intervener claiming ownership of attached property occupies a different situation. If he owns the property, as he claims and assumes to show, he may recover, regardless of the result of the issue between the plaintiff and the defendant. If he does not own it, he is equally a stranger to that issue. We know of no reason why the issue of ownership could not be tried and appealed pending completion of the steps necessary to obtain jurisdiction over the defendant. The intervener has, in effect, replevined the property from the plaintiff or the attaching officer, when, as in this case, he has taken possession of it under a forthcoming bond. In such a case it would be immaterial whether the alleged debt was owing or the attachment valid. We think, therefore, that the district court did not lack jurisdiction of the appeal.
The judgment is affirmed, and the cause will be remanded.
It is so ordered.
PARKER, C.J., and BICKLEY, J., concur.
Addendum
[3] Whether appellant was owner of the goods involved in this case depended upon whether a written contract between him and Powell constituted a conditional sale, or passed title in praesenti. The district court held that it was not a conditional sale. Appellant, by motion for rehearing, contends, for the first time, that this was error, and that, being fundamental, it should be reviewed; citing Crawford v. Dillard,
The motion will be denied.
PARKER, C.J., and BICKLEY, J., concur. *132