{
  "id": 2850389,
  "name": "BOARD OF COUNTY COMMISSIONERS OF SIERRA COUNTY, New Mexico, Petitioner-Appellee, v. Palmer BOYD and Mary Boyd, his wife, Defendants-Appellants",
  "name_abbreviation": "Board of County Commissioners v. Boyd",
  "decision_date": "1962-06-28",
  "docket_number": "No. 7129",
  "first_page": "254",
  "last_page": "258",
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      "cite": "372 P.2d 828"
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    "name": "Supreme Court of New Mexico"
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    {
      "cite": "51 A.L.R. 2d 830",
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      "year": 1939,
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  "last_updated": "2023-07-14T21:50:52.194101+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "MOISE and NOBLE, JJ., concur.",
      "COMPTON, C. J., and CARMODY, J., not participating."
    ],
    "parties": [
      "BOARD OF COUNTY COMMISSIONERS OF SIERRA COUNTY, New Mexico, Petitioner-Appellee, v. Palmer BOYD and Mary Boyd, his wife, Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "CHAVEZ, Justice.\nThe cause before us arises out of eminent domain proceedings instituted by the Board of County Commissioners of Sierra County, against Palmer Boyd and Mary Boyd, appellants herein, and others. The action was filed pursuant to what is termed a \u201cspecial alternative procedure,\u201d \u00a7\u00a7 22-9-39 to 22-9-54, N.M.S.A., 1961 Pocket Supp.\nThe trial court entered a default judgment against appellants on February 21, 1961, and determined that the amount of just compensation due appellants for all property taken was $0.00. On March 7, 1961, appellants, through their attorney, filed a motion to set aside the default judgment on the ground that appellants believed that the notice originally served upon them concerning this cause related to the right of appellee to enter the premises described in the petition and did not relate to the question of compensation due appellants for the taking of the land. The record shows a certificate of mailing of this motion. Pursuant to said motion and for good cause shown, the trial court, by order on March 7, 1961, set aside the default judgment and granted appellants twenty days from the date of filing of said order within which to answer said cause.\nOn March 28, 1961, appellee filed a motion to vacate the order of March 7, 1961, on the ground that appellants had failed to file their answer within twenty days from March 7, 1961, the date of the filing of the order vacating the default judgment. On March 30, 1961, the trial court by order vacated the March 7, 1961, order and reinstated the default judgment filed on February 21, 1961.\nOn March 31, 1961, appellants filed their answer to appellee\u2019s original petition, alleging that a dwelling house and dam located on the condemned property was of the value of $5000 and prayed for judgment in that amount. Thereafter, on April 7, 1961, appellants filed a motion to set aside and vacate the order of March 30, 1961, reinstating the original default judgment, on the ground that appellee had notice that appellants intended to appear and litigate the issues on the merits and that appellants had appeared in said cause. Appellants\u2019 motion also set out that appellee, in securing the order of March 30, 1961, did not serve notice upon appellants as required by \u00a7 21-1-1(55) (b), N.M.S.A., 1953 Comp.\nOn November 29, 1961, the trial court, by order denied appellants\u2019 motion to set aside the order and judgment dated March 29, 1961, and the reinstated default judgment was confirmed. From said order appellants were granted an appeal and are now before this court.\nThe sole issue before us is whether Rule 55(b), being \u00a7 21-1-1(55) (b), supra, is applicable in this case.\nAppellee apparently concedes that our Rules of Civil Procedure are applicable in eminent domain actions, but argues that Rule 55(b), supra, was not intended to apply where a trial court has ordered that an answer be filed within twenty days.\nThe special alternative procedure, \u00a7 22-9-51 (B) and (C), N.M.S.A., 1961 Pocket Supp., provides the following method for entry of default:\n\u201cB. If any defendant has failed to appear or answer within the time allowed, and the clerk has entered his default, then the court shall- conduct such hearings as it deems necessary and proper to determine the amount of just compensation due the defendant.\n\u201cC. For the purpose of the hearing required in subsections A and B above, the court may consider by affidavit or other proof of the value of the property taken, the damage, if any, which may result from the occupation and condemnation, and the amount offered as set forth in the petition and shall enter such judgment as it deems proper.\u201d\nRule 55(a), being \u00a7 21-1-1(55) (a), Rule 55(b), being \u00a7 21-1-1(55) (b), and Rule 55(c), being \u00a7 21-1-1(55) (c), N.M.S.A., 1953 Comp., provides:\n\u201c(a) ENTRY. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as 'provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.\n. \u201c(b) JUDGMENT. Judgment by default may be entered as follows: In all cases the party entitled to a judgment by default shall apply to the court therefor; * * * If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three [3] days prior to the hearing on such application; * * *\n\u201c(c) SETTING ASIDE DEFAULT. For good cause shown, the court may set aside an' entry of d\u00e9-' fault and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60.\u201d\nThe trial court, evidently acting under Rule 60(b) (6), \u00a7 21-1-1(60) (b) (6), N.M.S.A., 1953 Comp., and exercising its sound discretion, set aside the default judgment and granted appellants twenty days within which to answer. Thus upon the expiration of twenty days,- if appellants had not answered, appellee was then entitled to-apply for a judgment. This appellee could do under Rule 55(b), supra, by serving upon appellants\u2019 representatives written notice of their application for judgment at least three days prior to the hearing on such application. This appellee failed to- do\u201ebut instead on March 28, 1961, filed a motion to vacate the order of March 7, 1961, and on March 30, 1961, the trial court vacated the M!arch 7, 1961, order and reinstated the original default judgment.\nAppellee contends that it proceeded under the special alternative procedure in obtaining its original default judgment. As we read \u00a7 22-9-51(b), supra, if any defendant- fails to appear or answer within the time allowed (30 days), and the clerk has entered his default, then the court shall conduct such hearings as it deems necessary and proper to determine the amount of just compensation due to the defendant. We see no inconsistency between \u00a7 22-9-51 (b) and Rule 55(b), supra. Section 22-9-51 contemplates that after entry of default by the clerk, the court- shall -conduct a hearing and determine the amount of just compensation due a condemnee. This is in recognition of Art. II, \u00a7 18, of our constitution, which provides that no person shall be deprived of-his property without due process of law, and of .Art. II, \u00a7 20, which provides that property shall not be taken or damaged for public use without just compensation,\nThe trial court, in its final order, did not proceed in conformity with \u00a7 22-9-51, supra. The record fails to show that the clerk entered its default which is the initial step in obtaining the subsequent entry of a judgment. The trial court merely denied appellants\u2019 motion to vacate the March 30, 1961, order and reinstated the original default judgment. This was clearly an entry of a default judgment.\nIt is our view that under the pleadings and record in this case, Rule 55(b), supra, is applicable and that appellants, having filed their motion to set aside the original default judgment and the trial court having acted thereon, entered their appearance in the case within the contemplation of Rule 55(b), supra. Accordingly, if appellee desired to apply to the trial court for a default judgment, it was incumbent upon appellee to serve appellants with written notice of the application for judgment at least three days prior to the hearing on such. application. Failure to give the required notice requires an appellate court to reverse a default judgment. Adams & McGahey v. Neill, 58 N.M. 782, 276 P.2d 913, 51 A.L.R. 2d 830; Hoffman v. New Jersey Federation of Young Men\u2019s and Young Women\u2019s Hebrew Ass\u2019ns, (3 CCA 1939), 106 F.2d 204; Commercial Casualty Ins. Co. v. White Line Transfer & Storage Co., (8 CCA 1940), 114 F.2d 946; Phoenix Metals Corp. v. Roth, (1955), 79 Ariz. 106, 284 P.2d 645.\nWe might say in passing that we are not impressed with the argument of one of appellants\u2019 counsel to the effect that he did not know when the order setting aside the default judgment was filed; hence his excuse for not filing the answer until March 31, 1961. It was his duty to inquire and find out when the order was filed and to have acted accordingly. In the case before us, however, there are no intervening equities and the court should be liberal in its determination of what is a good excuse, to the end that final disposition may be made of this case according to the merits, rather than otherwise.\nThe judgment of the trial court is reversed with instructions to set aside its final order; to reinstate the cause on the docket; and proceed in a manner not inconsistent with what we have said.\nIt is so ordered.\nMOISE and NOBLE, JJ., concur.\nCOMPTON, C. J., and CARMODY, J., not participating.",
        "type": "majority",
        "author": "CHAVEZ, Justice."
      }
    ],
    "attorneys": [
      "Nils T. Kjellstrom, David F. Boyd, Jr., Albuquerque, for appellants.",
      "Earl E. Hartley, Atty. Gen., M. W. Hamilton, Hadley Kelsey, Joseph L. Droege, Epifanio Garcia, John C. Worden, M. J. Underwood, Sp. Attys. Gen., Santa Fe, for appellee."
    ],
    "corrections": "",
    "head_matter": "372 P.2d 828\nBOARD OF COUNTY COMMISSIONERS OF SIERRA COUNTY, New Mexico, Petitioner-Appellee, v. Palmer BOYD and Mary Boyd, his wife, Defendants-Appellants.\nNo. 7129.\nSupreme Court of New Mexico.\nJune 28, 1962.\nNils T. Kjellstrom, David F. Boyd, Jr., Albuquerque, for appellants.\nEarl E. Hartley, Atty. Gen., M. W. Hamilton, Hadley Kelsey, Joseph L. Droege, Epifanio Garcia, John C. Worden, M. J. Underwood, Sp. Attys. Gen., Santa Fe, for appellee."
  },
  "file_name": "0254-01",
  "first_page_order": 286,
  "last_page_order": 290
}