{ "id": 2871573, "name": "Alvin CHAPMAN (Cowling) and Mary Chapman, Plaintiffs-Appellants, v. FARMERS INSURANCE GROUP, Defendant-Appellee", "name_abbreviation": "Chapman v. Farmers Insurance Group", "decision_date": "1976-12-14", "docket_number": "No. 2571", "first_page": "18", "last_page": "20", "citations": [ { "type": "official", "cite": "90 N.M. 18" }, { "type": "parallel", "cite": "558 P.2d 1157" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "58 N.M. 517", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587515 ], "weight": 5, "year": 1954, "pin_cites": [ { "page": "525" }, { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nm/58/0517-01" ] }, { "cite": "85 N.M. 684", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776740 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0684-01" ] }, { "cite": "86 N.M. 779", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824694 ], "weight": 2, "pin_cites": [ { "page": "780" }, { "page": "1218" } ], "opinion_index": 0, "case_paths": [ "/nm/86/0779-01" ] }, { "cite": "81 N.M. 661", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359215 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0661-01" ] }, { "cite": "126 A.L.R. 651", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1939, "opinion_index": 0 }, { "cite": "44 N.M. 16", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566843 ], "weight": 2, "year": 1939, "opinion_index": 0, "case_paths": [ "/nm/44/0016-01" ] }, { "cite": "60 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590405 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/60/0111-01" ] } ], "analysis": { "cardinality": 398, "char_count": 6237, "ocr_confidence": 0.8, "pagerank": { "raw": 1.107587908375248e-07, "percentile": 0.5699179759128814 }, "sha256": "8c09436f14bffc3145159fe89f0f2bb324a565350537f90b699e6a70a11a13df", "simhash": "1:37edb47390c3dc77", "word_count": 983 }, "last_updated": "2023-07-14T21:34:48.706767+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "Alvin CHAPMAN (Cowling) and Mary Chapman, Plaintiffs-Appellants, v. FARMERS INSURANCE GROUP, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nAfter obtaining a default judgment against Teresa Molina in a personal injury claim, based upon service by publication, plaintiffs brought this, action against defendant, who was Molina\u2019s insurer, to recover the amount obtained in the default judgment. Defendant\u2019s motion to dismiss for failure to state a claim was sustained and plaintiffs\u2019 complaint was dismissed with prejudice. Plaintiffs appeal. We affirm.\nA. The default judgment was void.\nOn March 5, 1973, plaintiffs filed a complaint against defendant Teresa Molina. It alleged that on November 11, 1970, this defendant negligently operated her vehicle and struck Alvin Chapman who was riding his bicycle, causing personal injuries and damage. On August 23, 1973, plaintiffs\u2019 trial attorney filed an affidavit that \u201cdue search and inquiry has been made as to the whereabouts of the Defendant, but efforts to do so have been unsuccessful, and said attorney requests that service by publication be granted.\u201d\nNotice of suit was published in The El Independiente and the New Mexico Independent newspaper on August 31, September 7, 14 and 21, 1973.\nOn January 17, 1975, sixteen months later, plaintiffs\u2019 attorney filed an affidavit that publication had been made and defendant had not entered her appearance and that plaintiffs were entitled to default judgment. On January 22,1975, motion for default judgment was filed and on January 29, 1975, judgment was entered for plaintiffs.\nOn November 5, 1975, over nine months later, plaintiffs filed a complaint against Farmers Insurance Group, the insurer of Teresa Molina, to secure satisfaction of the default judgment.\nThe trial court granted plaintiffs a default judgment against Teresa Molina based upon service by publication under Rule 4(g) of the Rules of Civil Procedure [\u00a7 21-1-l(4)(g), N.M.S.A.1953 (Repl. Vol. 4)].\nThis statute restricts notice by publication to actions in rem or quasi in rem. It does not relate to an action in personam. In the absence of personal service of summons within this State in an action in personam, the district court lacks jurisdiction to enter judgment. State ex rel. Pavlo v. Scoggin, 60 N.M. 111, 287 P.2d 998 (1955); State ex rel. Truitt v. District Court of Ninth Judicial Dist., Curry County, 44 N.M. 16, 96 P.2d 710, 126 A.L.R. 651 (1939). Personal service on nonresidents may be had under \u00a7 21-3-16, N.M.S.A.1953 (Repl. Vol. 4, 1975 Supp.). Pope v. Lydick Roofing Company of Albuquerque, 81 N.M. 661, 472 P.2d 375 (1970).\nThe trial court, lacking jurisdiction to enter judgment, the default judgment entered was void.\nB. Plaintiffs\u2019 claim for relief survives.\nThis opinion, which holds the default judgment void, does not affect the validity of plaintiffs\u2019 complaint against defendant Molina. We note that the accident occurred on November 11, 1970. Plaintiffs\u2019 complaint against defendant Molina was filed on March 5, 1973, almost 2lh years after the accident. We can understand plaintiffs\u2019 failure, by due search and inquiry, to learn the whereabouts of defendant Molina. More than six years have now passed since the date of the accident. We do not know the facts and circumstances surrounding this delay. The record does not show that defendant Molina deliberately concealed herself to evade service of process. She had no reason to do so when protected with liability insurance. We were informed by plaintiffs\u2019 appellate attorney, during oral argument, that the whereabouts of defendant Molina is known. Plaintiffs must obtain personal service on defendant Molina to pursue this action further.\nPlaintiffs\u2019 complaint against defendant Farmers was dismissed with prejudice. Defendant Farmers agrees with plaintiffs that the cause of action against defendant Farmers should be dismissed without prejudice. \u201cA dismissal without prejudice does not relieve the insurer from further claims of plaintiff against the insurance company on its policy of insurance.\u201d Caster v. Board of Education of Albuquerque, 86 N.M. 779, 780, 527 P.2d 1217, 1218 (Ct.App.1974).\nC. Plaintiffs may not sue defendant Farmers directly.\nPlaintiffs\u2019 complaint against defendant Farmers was an action against defendant based upon the default judgment procured against defendant Molina in a previous action. Deletion of the default judgment from the complaint transforms this complaint into a direct action against defendant Farmers for recovery of damages caused by the negligence of defendant Molina. It has been uniformly held that, absent a contractual or statutory provision authorizing the action, an insurance carrier cannot be sued directly and cannot be joined as a party defendant. Caster v. Board of Education of Albuquerque, supra; Campos v. Brown Construction Company, 85 N.M. 684, 515 P.2d 1288 (Ct.App.1973); Breeden v. Wilson, 58 N.M. 517, 273 P.2d 376 (1954).\nPlaintiffs believe the public policy of this State should be changed to conform to decisions of other states. A change in public policy rests in the discretion of the Supreme Court.\nPlaintiffs rely on Rules 17 and 20 of the Rules of Civil Procedure [\u00a7 21-1-1(17), (20), N.M.S.A.1953 (Repl. Vol. 4)]. Rule 17(a) refers to real party in interest. Rule 20(a) refers to permissive joinder. In Breeden v. Wilson, supra, the Court said with reference to Rules 18, 19 and 20:\nCertainly, in their broad language, they seem to do so [allow joinder of claims and remedies]. However, under the view we have taken of this case, the question involved is not procedural, but one involving the substantive rights of the parties. The rules are procedural and do not control substantive rights. [58 N.M. at 525, 273 P.2d at 380].\nAffirmed. This cause is remanded to the trial court to amend its judgment to read that plaintiffs\u2019 complaint be and hereby is dismissed \u201cwithout\u201d prejudice.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Alfred M. Carvajal, Albuquerque, for plaintiffs-appellants.", "Lawrence H. Hill and C. LeRoy Hansen, Civerolo, Hansen & Wolf, Albuquerque, for defendant-appellee." ], "corrections": "", "head_matter": "558 P.2d 1157\nAlvin CHAPMAN (Cowling) and Mary Chapman, Plaintiffs-Appellants, v. FARMERS INSURANCE GROUP, Defendant-Appellee.\nNo. 2571.\nCourt of Appeals of New Mexico.\nDec. 14, 1976.\nCertiorari Denied Jan. 14, 1977.\n558 P.2d 1157\nAlfred M. Carvajal, Albuquerque, for plaintiffs-appellants.\nLawrence H. Hill and C. LeRoy Hansen, Civerolo, Hansen & Wolf, Albuquerque, for defendant-appellee." }, "file_name": "0018-01", "first_page_order": 54, "last_page_order": 56 }