 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Cooper v. Amerada Hess Corp.9/15/2000
.b., at 777-78.
The common-law treatment of tort actions for injuries to land as local claims appears to have been as much a matter of tradition as of logic. For example, even though an action for damages for trespass to real property was considered local, actions for specific performance of a contract to sell real property or for breach of a lease of real property were considered transitory actions, which could be brought in any court with jurisdiction over the person of the defendant. McKinney, § II.b. text and notes at 783. In his celebrated opinion in Livingston, Chief Justice Marshall criticized the common-law rule as applied to trespass actions:
It is admitted, that on a contract respecting lands, an action is sustainable wherever the defendant may be found: yet, in such a case, every difficulty may occur which presents itself in an action of trespass. An investigation of title may become necessary. A question of boundary may arise, and a survey may be essential to the full merits of the cause: yet these difficulties have not prevailed against the jurisdiction of the court. They have been countervailed, and more than countervailed by the opposing consideration, that if the action be disallowed, the injured party may have a clear right without a remedy in a case where the person who has done the wrong, and who ought to make the compensation, is within the power of the court. That this consideration should lose its influence, where the action pursues a thing not within the reach of the court, is of inevitable necessity; but for the loss of its influence where the remedy is against the person and can be afforded by the court, I have not yet discerned a reason, other than a technical one, which can satisfy my judgment. Livingston, 15 F. Cas. at 664.
Under the Kearny Code, there was no attempt to distinguish transitory and local actions as at common law; instead, in all actions, venue depended upon the residence of the parties.
The 1851 Act appears to have codified a modified common-law approach. For example, the sixth exception limiting the venue of actions to recover moveable property to the county where the property is found, 1851 Act, §7, 6, corresponds to the common-law characterization of replevin as a local action. See McKinney, § II.b. at 779. The ninth exception, applicable " hen lands are the object of the suit" likewise is consistent with the common-law's characterization of suits to recover land as local actions. See McKinney, § II.b. at 777. It is less clear whether the Legislature intended the ninth exception to codify the common-law's characterization of suits to recover damages to real property as local.
The 1853 Act reinstated the Kearney Code's approach to venue and once again abolished the common-law distinctions between transitory and local actions. The 1853 Act remained in effect for the next twenty- three years.
The 1876 Act involved a substantial reworking of the general venue statute. The relationship of the 1876 Act to common-law venue rules is not entirely clear. Although the 1876 Act refers to "transitory actions," it does not employ the complementary common-law term "local actions." In the cases of trespass to land and recovery of moveable property, the 1876 Act is consistent with the common law in providing for venue to be laid in the county where the property is located, McKinney, § II.b. at 777-79, but the 1876 Act clearly departs from the common law in providing for venue in such actions to be laid in the alternative in the same manner as in transitory actions.
In summary, our review of the predecessors to Section 38-3-1 satisfies us that New Mexico has never fully embraced the com
Page 1 2 3 4 5 6 7 8 9 New Mexico Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|