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(— N. M. — 168 Pac. 528.)

the great damage and prejudice of said corporation and the state, and concludes with a prayer by the petitioner, alone, that respondents be required to show cause why leave to file an information in the nature of quo warranto in behalf of said state at the relation of said petitioner should not be granted. The petition was signed by private counsel as attorneys for the petitioner.

An order to show cause was issued upon said petition, which, with a copy of said petition, was personally served in Luna county, upon the respondent Lindauer, and upon Arthur A. Temke as alleged resident agent of the company, under an order of court dated March 16, 1914, directing service so to be made, and directing that such service upon Temke should be sufficient service to bring said respondents, acting as a pretended board of directors of said company, except respondent Lindauer, into court.

Upon the return date of said order to show cause, a demurrer to the sufficiency of the petition for leave to file the information was filed by S. Lindauer and Arthur A. Temke. This demurrer was overruled, and leave granted to file the information on April 16, 1914.

On April 10, 1914, there was filed in the clerk's office of said court a letter from Frank W. Clancy, attorney general, to "Mr. D. J. Cable, Secretary of the Northwestern Colonization & Improvement Company of Chihuahua," purporting to give the consent of said Clancy to the bringing of quo warranto proceedings in the name of the state of New Mexico ex rel. the said company, against Luis Huller and nine others. Upon April 16, 1914, there was filed an information in the nature of quo warranto against the said respondents, substantially in the same form as the petition, except that the same was entitled in the name of the state of New Mexico ex rel. the Northwestern Colonization & Improvement Company, and usurpations were alleged to have been upon the state alone. The word "office" was

omitted, and the verification was made by James R. Garfield, as vice president of the relator.

Thereupon, on the same day, an order or citation entitled in the same form as said information and as a summons, and reciting the filing of said information, issued out of said district court, addressed to the said respondents, and commanding them under penalty of the law and pain of judgment to appear at 10 o'clock, A. M., on June 1, 1914, before said district court, there to answer said information; which said order had the seal of said court impressed thereon, and was signed, "H. F. Raynolds, District Judge, etc."

An order for service was indorsed on said last-named order, reciting that, as it appears Arthur A. Temke has been appointed by respondents their resident agent for service of process, "it is ordered that service of this summons be served upon said Arthur A. Temke, and shall be service upon the respondents (naming them). H. F. Raynolds, District Judge, etc." And service was thereupon had on Temke and Lindauer in Luna county.

In response to such service, the respondents, other than said Lindauer, appearing specially for that purpose, or at least attempting to do so, filed their motions respectively: (1) To quash the return of the sheriff of Luna county upon said order or citation and vacate the order authorizing such service on said Temke; (2) to quash said information or strike the same from the files of the court; and (3) to vacate the order indorsed on said citation; and the said Lindauer, also appearing specially for that purpose, filed his plea to the jurisdiction of the court and a plea in abatement of said citation or summons, all of which motions and pleas were overruled by the court. Thereafter various demurrers and pleas were filed by the respondents, some on jurisdictional grounds and others to the merits, to which the relator filed replications. Demurrers were filed by respondents to the replications or, at least,

by some of the respondents, which were overruled and thereupon rejoinders were filed. To the rejoinders the relator filed a paper denominated a surrejoinder, setting up as exhibits two certain contracts, and praying that the court construe the same. There were so many different pleadings, demurrers, motions, etc., filed in the case by the various parties, that it would unduly lengthen this statement of facts to give in detail the history of the pleadings. It will suffice to say that down to and including the filing of the rebutter; the respondents arranged themselves as follows: (a) The respondent Haskell stood upon the demurrer to the original information in the nature of quo warranto, and refused to further plead; (b) the respondent Johnson stood upon the demurrer to the replication and his motions for judgment upon the pleadings, and refused to further plead: (c) the other respondents filed pleas down to and including their rejoinders.

The cause was set down for trial on June 1, 1915, upon which date, or shortly thereafter, the relator elected to file a motion for judgment upon the pleadings, which motion was sustained, and final judgment of ouster was entered thereon upon the pleadings filed by the relator, for and in behalf of the state of New Mexico, from which judgment of ouster the respondents prayed this appeal.

The first question with which we are confronted is the action of the court in overruling the motions interposed by certain of the respondents, to quash service. That the That the method employed in obtaining service upon the nonresident respondents was illegal and void hardly requires discussion. The relator was proceeding against the respondents as individuals, and alleged that they were not directors of the corporation and had no connection therewith, but were usurpers and intruders. In view of these allegations and of the relief sought, it could hardly be contended that the service

of summons upon an individual, designated by these alleged usurpers as resident agent of the corporation, for the purpose of accepting service upon the corporation and the directors and officers of the corporation, as such, would be effectual to bring the individuals legally before a court in an action of this kind.

Sections 932 and 934, Code 1915, which require a corporation to designate a resident agent upon whom process against the corporation may be served, and which provide: "And whenever by the provisions of any law of this state notice is required to be given to the corporation, its officers, stockholders or directors, such notice shall be sent by mail or otherwise, as the law may require, to such registered office, and such notice so given shall be deemed sufficient notice," do not authorize service of process upon a supposed agent, alleged to have been designated as such by parties who have usurped and intruded into the offices of directors of such corporation, or to have usurped franchises of the corporation, in an action by information in the nature of quo warranto against such individuals, to oust them from the exercise of such offices and franchises. Indeed, these sections provide no warrant whatever for the service of process upon individuals who may be directors of a corporation, and, as such, have designated an agent of the corporation upon whom service of process against the corporation may be had, where the action. is against such directors or other officers of the corporation in their individual capacities, and not as directors or officers of the corporation.

Appellee contends, however, that if the service should be defective, that appellants have entered a general appearance in the case, and that they are bound by the judgment.

Appellants admit that as to all of the respondents save Huller the appearance was general, or, to say the least, they do not contend that the

(— N. M. —, 168 Pac. 528.)

remaining respondents have not generally appeared. It is strenuously insisted, however, that the court never acquired jurisdiction over Luis Huller, and while I am inclined to agree with this contention, I shall not discuss the question at length. Huller, with others, filed, first, a motion to quash the return of the sheriff; second, a motion to vacate the order made April 16, 1914, allowing service upon Temke to be service upon respondents; and, third, a motion to quash the information or, in the alternative, to strike it from the files.

In these various motions two questions were raised: First, jurisdiction of the court over the subject-matter; and, second, jurisdiction over the person. The rule of pleading at common law and the orders in which the pleas may be made are: (1) To the jurisdiction of the court. (2) To the persons: (a) Of plaintiff; (b) of defendant. (3) To the count. (4) To the writ therein: (a) To the form of a writ; (b) to the action of a writ. (5) To the action itself in bar thereof.

By this order of pleading each subsequent plea admits the former; as, when the defendant pleads to the person, he admits the jurisdiction of the court. When he pleads to the count, he admits the competency of the plaintiff and his responsibility. When he pleads to the form of the writ, he admits the form of the count and, in like manner, of the rest. 1 Tidd. Pr. 630.

Here, Huller joined in the same plea questions relating to the jurisdiction of the court over the subjectmatter and jurisdiction over the person. By so doing he doubtless waived the question of jurisdiction of the court over the subject of the action, but I do not believe that it can be maintained, with any degree of logic, that he waived the question of jurisdiction of the person.

Nor did he waive this jurisdictional question by pleading to the merits when forced to do so by

the overruling of his jurisdictional pleas. This question is settled by decisions of the Supreme Court of the United States. See Harkness v. Hyde, 98 U. S. 476, 25 L. ed. 237; Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565.

Before giving consideration to what I deem the decisive question in this case, it is necessary to determine the nature and purpose of this proceeding. In the district court, appellee insisted that the action was instituted under the provisions of 9th Anne, chapter 20, which has been held to be a part of the common law adopted in this jurisdiction by § 1354, Code 1915. While cognizant of the fact that many of the state courts have held that this statute was no part of the common law of England, and was not a part of the law of such states, by virtue of the adoption by such states of the common law of England as the rule of practice and decision, still the rule has been so long established and so consistently adhered to in this state that it would be unwise, at this late date, to enter upon a reinvestigation of the question. Hence, I shall accept the repeated declarations of both the territorial and state supreme courts, that such statute is a part of the common law adopted by the statute above referred to as settled law.

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By 9 Anne, chap. 20, § 4, it is enacted "that in case any person or persons shall usurp, intrude into, or unlawfully hold and execute [the offices of mayors, bailiffs, portreeves, or other offices within cities, towns corporate, boroughs, or places in England or Wales, or into the franchises of being burgesses or freemen of such cities, towns corporate, boroughs or places] it shall and may be lawful to and for the proper officer [of the court of Queen's bench, the courts of sessions of counties palatine, or the court of grand sessions in Wales] with the leave of the said courts respectively, to ex

hibit one or more information or informations in the nature of a quo warranto, at the relation of any person or persons desiring to sue or prosecute the same, and who shall be mentioned in such information or informations to be the relator or relators against such person or persons, so usurping, intruding into, or unlawfully holding and executing any of the said offices, or franchises, and to proceed therein in such manner as is usual in cases of information in the nature of a quo warranto; and if it shall appear to the said respective courts, that the several rights of divers persons to the said offices or franchises may properly be determined on one information, it shall and may be lawful for the said respective courts to give leave to exhibit one such information against several persons, in order to try their respective rights to such offices or franchises; and such person or persons, against whom such information or informations in the nature of a quo warranto shall be sued or prosecuted, shall appear and plead as of the same term or sessions in which the said information or informations shall be filed, unless the court where such information shall be filed, shall give further time to such person or persons, against whom such information shall be exhibited, to plead; and such person or persons, who shall sue or prosecute such information or informations in the nature of a quo warranto, shall proceed thereupon with the most convenient speed that may be."

And it is further enacted (§ 5) "that in case any person or persons, against whom any information or informations in the nature of a quo warranto shall in any of the said cases be exhibited in any of the said courts, shall be found or adjudged guilty of an usurpation, or intrusion into, or unlawfully holding and executing any of the said offices, or franchises, it shall and may be lawful to and for the said courts respectively, as well to give judgment of ouster against

such person or persons, of and from any of the said offices and franchises, as to fine such person or persons respectively, for his or their usurping, intruding into, or unlawfully holding and executing any of the said offices or franchises; and also it shall and may be lawful to and for the said courts respectively, to give judgment that the relator or relators in such information named shall recover his or their costs of such prosecution; and if judgment shall be given for the defendant or defendants in such information, he or they, for whom such judgment shall be given, shall recover his or their costs therein expended against such relator or relators; such costs to be levied by capias ad satisfaciendum, fieri facias, or elegit."

A writ of quo warranto was in the nature of a writ of right for the King, against him who claimed or usurped any office, franchise, or liberty, to inquire by what authority he supported his claim in order to determine the right. Little is known of its origin, but that it was employed in the English courts centuries ago is not to be doubted, because in the earliest English Reports we find cases wherein it was employed and the right was not questioned. Likewise, there is no historical certainty as to the origin of the remedy by information in the nature of quo warranto. That the writ was employed long prior to the Statute of Anne is not doubted. Such an action, however, was always, I believe, instituted by the Crown attorney or on his relation, and a private relator was never admitted to institute the suit. That the procedure was different in many respects between the common-law action by information in the nature of quo warranto and the procedure under the Statute of Anne is not subject to question. The former, as stated, was always instituted by the Crown attorney, and this without leave of court, and as a matter of right; the latter could only be filed by leave of court first had and obtained. A private relator was un

(N. M., 168 Pac. 528.)

known in the former proceedings, had no control over the cause, and if his name was added it was regarded as surplusage.

Prior to the Statute of Anne, the information in the nature of quo warranto was employed exclusively as a prerogative remedy, to punish a usurpation upon the franchises or liberties granted by the Crown, and it was never used as a remedy for private citizens, desiring to test the title of persons claiming to exercise a public franchise. And although such informations were exhibited by the King's attorney general long before the enactment of the statute, yet the remedy thereby given was never enlarged beyond the limits prescribed for the original writ of quo warranto, which extended only to encroachments upon the royal prerogative. High, Extr. Leg. Rem. § 602. The employment of the information in the nature of quo warranto, as a means of investigating and determining civil rights between parties, was unknown prior to the Statute of Anne.

The usurpation of a right or franchise upon the Crown concerned the Crown alone, and whether the party so usurping should be ousted or permitted to continue and enjoy the franchise was a matter resting solely with the King; hence, a private individual was never permitted to interfere or intrude in such matters as concerned the King alone. Whether the suit should be filed to oust such person from such franchise, or claimed right, rested solely with the Crown attorney, and leave of the court was never required.

Notwithstanding the fact that relator framed its pleadings and proceeded in the trial court upon the theory that the action was instituted under the provisions of the Statute of Anne, and counsel so stated to the trial court, it is here contended that this court should uphold the action of the trial court, upon the theory that the suit was instituted by the attorney general, upon his own relation, for the pur

pose of ousting respondents from the exercise of franchises and privileges which they are usurping upon the state, and that we should disregard the relator named in the proceedings, and sustain the judgment of ouster. Hence, the first question to be determined is whether the petitioner should be held to the theory of the case adopted in the court below. That we must do so is readily apparent, unless this case comes within the exception to the general and well-established rule that the case, on appeal, must be decided on the same theory on which it was tried in the court below. 2 R. C. L. p. 183; 4 C. J. pp. 661, 662; Cadwell v. Higginbotham, 20 N. M. 482, 151 Pac. 315. The exception to the rule is thus stated in 4 C. J. 662; "But, as shown, there are exceptions and limitations to this rule, and it is clear that the appellate court is not necessarily restricted to the theory on which the lower court proceeded, but may review any error apparent on the record, and base its affirmance or reversal on a different theory or on different grounds, provided the question involved was properly before the lower court."

Here, the relator refuses to definitely plant its feet upon either theory. It neither takes the position that the proceeding was instituted under the Statute of Anne nor under the common-law proceeding by quo warranto, or information in the nature of quo warranto. It says: "If the proceeding could not be instituted under the Statute of Anne, it could under the commonlaw writ of quo warranto, or information in the nature of quo warranto; if the relator named could not be a relator, or if the proceeding could not be instituted by a private relator, disregard the relator and treat the naming of the one as surplusage, and sustain the judgment upon the theory that the cause was instituted by the attorney general on behalf of the state."

The manifest infirmity of this contention is that the proceeding was not instituted by the attorney

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