Highsmith v. Crista

MARKS, J. This is an appeal from a judgment for $960 which plaintiff recovered as due and unpaid on a judgment obtained in the District Court of Eddy County, New Mexico.

Defendant and Loraine Phillips were formerly husband and wife. They had one child, Billy Lee Crista. Loraine obtained a divorce from defendant in about 1931.

On March 17, 1936, Loraine obtained the judgment on which this action was brought and which contained the following :

“It Is Therefore Ordered, Adjudged and Decreed by the Court that the defendant be and he is hereby ordered and directed on the first day of each month, after the entry of this decree, to pay to the Clerk of Eddy County, New Mexico, for the use and benefit of plaintiff, Loraine Phillips, in the sup[810]port and maintenance of the minor child, Billy Lee Crista, the sum of Fifteen ($15.00) Dollars.”

Crista was then a resident of California, but the records of the New Mexico court show service on him in New Mexico and the judgment of that court so finds. The trial court here found. that personal service in that action was had in New Mexico which is conclusive here.

Under amendments of the New Mexico statutes clerks of the District Courts have succeeded to the rights and duties of county clerks insofar as those involved in this case are concerned.

Defendant petitioned the New Mexico court for an order giving him the custody of Billy Lee Crista. After a hearing his petition was denied on the ground that he had failed to support his child and to obey the former order requiring him to pay $15 monthly for that purpose. It was further found that Loraine was not a fit and proper person to have custody and control of Billy and his custody was awarded to Iva Phillips Driver his maternal grandmother. This order made no provision for the support of the minor. It was dated July 1, 1941, but was not filed until July 15, 1941.

On October 9, 1941, Iva Phillips Driver brought an action in the Superior Court of San Bernardino County, on the judgment rendered by the New Mexico court on March 17, 1936. A demurrer was sustained with leave to amend. An amended complaint was filed in which Ethel M. Highsmith, Clerk of the District Court of Eddy County, New Mexico, appeared as plaintiff instead of Iva Phillips Driver, the original plaintiff. Defendant’s demurrer to this amended complaint was overruled and after a trial plaintiff was given judgment for $1,320 which, on motion for a new trial, was reduced to $960. This appeal followed.