77 P.2d 178 | N.M. | 1938
In the case of W.A. Cronin and H.L. Carter, plaintiffs, v. L.E. Shoup, W.H. Duncan, Michael P. Fominyh, and First National Bank, in Albuquerque, defendants, pending in the district court of the Seventh judicial district of the state of New Mexico within and for the county of Sierra, No. 2819, the court appointed J.C. Gilbert receiver, and later issued a turnover order directed to H.E. Stanley and R.A. Tipton, commanding them to deliver to said receiver listed personal property consisting of mining tools and equipment, or, if not in their possession, to disclose to said receiver the whereabouts of said property, or show cause within three days why they should not comply with said order. The order was personally served in Sierra county. *293
The said Stanley and Tipton, as relators, here seek to prohibit the Hon. Eugene D. Lujan, judge of the Seventh judicial district court, from enforcing said order. Relators maintain that respondent has no jurisdiction in said cause No. 2819 of the property involved, the possession of which it is admitted relators had under claim of ownership prior to the appointment of the receiver, nor of relators, since they are not parties to said cause.
Relators also urge that the complaint in cause No. 2819 fails to state a cause of action entitling the plaintiffs to equitable relief or the appointment of a receiver. We held in effect in State v. Medler,
See Vukovich v. St. Louis, Rocky Mt. Pacific Co.,
Relators strenuously urge that as strangers to cause No. 2819, in possession of property the title to which is admittedly in dispute, they are entitled to due process — that they should be made parties to cause No. 2819 in the regular way, 1929 N.M. Comp.St.Anno., § 105-607, or the receiver should proceed against them by suit in the ordinary manner, and that in either case the time allowed for answer is fixed by statute.
We said in Parsons Mining Co. v. McClure,
The question for decision is in principle much like the point involved in Hammond et al. v. Eighth Judicial District Court,
We are constrained to hold on the authority of this case that the court did not obtain jurisdiction by service of the three-day order.
However, it is maintained by counsel for respondent that E.L. Medler, Esq., counsel for relators, in communicating with Judge Lujan regarding the hearing on the order to show cause and obtaining an extension of time in which to answer, entered a general appearance for relators. The lower court has made no ruling upon this point, and we hold that the question must be submitted to that court. We said in Board of Commissioners of Guadalupe County v. District Court,
For the reasons stated, the alternative writ of prohibition will be discharged, and it is so ordered.
HUDSPETH, C.J., and SADLER, BICKLEY, BRICE, and ZINN, JJ., concur. *295