1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number: 

3 Filing Date: October 20, 2016

4 NO. S-1-SC-34993

5 T.H. MCELVAIN OIL & GAS LIMITED PARTNERSHIP, a New Mexico

6 limited partnership; KAREN ANN HANDLEY ANDERSON, an individual;

7 SUSAN R. HANDLEY MCGREW, an individual; BILLIE L. PHILLIPS, an

8 individual; BILLIE L. PHILLIPS RECOVERABLE TRUST DATED APRIL 23,

9 1996, BILLIE L. PHILLIPS Trustee; JUDY LYNN QUINT, an individual;

10 RONALD CHARLES WEEBER, an individual; LUCILE ALICE

11 NORTHCOTE TRUST DATED MAY 29, 1996, BILLIE L. PHILLIPS,

12 Successor Trustee,

13 Plaintiffs-Respondents,

14 v.

15 GROUP I: BENSON-MONTIN-GREER DRILLING CORP., INC., a Delaware

16 corporation; ELIZABETH JEANNE TURNER CALLOWAY, an individual;

17 KELLY R. KINNEY, an individual; KATHERINE P. MILLER, an individual;

18 RONALD MICHAEL MILLER, an individual; VICKIE ROANN MILLER, an

19 individual; THOMAS R. MILLER, an individual; FRED E. TURNER, LLC, a

20 Delaware limited liability company; JOHN LEE TURNER, an individual;

21 LINDA VOITL a/k/a LINDA DAVIS, an individual; ESTATE OF WILLIAM

22 G. WEBB, deceased, JOHN G. TAYLOR, independent executor,

23 Defendants-Petitioners,

24 GROUP II: CHERYL U. ADAMS, an individual; E’TWILA J. AXTELL,

25 an individual; BP AMERICA PRODUCTION COMPANY, a Delaware 

26 corporation; COASTAL WATERS PETROLEUM COMPANY, INC., a

27 Louisiana corporation; ENERGEN RESOURCES CORPORATION, an

28 Alabama corporation; THE ESTATE OF ANNE B. LITTLE, FIRST
1 SECURITY BANK OF NEW MEXICO, as personal representative; LANA GAY

2 PHILLIPS, an individual; HENRIETTA SCHULTZ, an individual; THE

3 FRANK AND HENRIETTA SCHULTZ REVOCABLE TRUST DATED

4 JANUARY 2, 1990, HENRIETTA SCHULTZ, Trustee; SCHULTZ

5 MANAGEMENT, LTD., a Texas limited partnership; J. GLENN TURNER, JR.,

6 LLC, a Delaware limited liability company; MARY FRANCES TURNER, JR.

7 TRUST, JP MORGAN CHASE BANK, NA, Trustee,

8 Defendants,

9 GROUP III: ALL UNKNOWN CLAIMANTS OF INTEREST IN THE

10 PREMISES ADVERSE TO THE PLAINTIFFS,

11 Defendants.

12 and

13 NO. S-1-SC-34997

14 T.H. MCELVAIN OIL & GAS LIMITED PARTNERSHIP, a New Mexico

15 limited partnership; KAREN ANN HANDLEY ANDERSON, an individual;

16 SUSAN R. HANDLEY MCGREW, an individual; BILLIE L. PHILLIPS, an

17 individual; BILLIE L. PHILLIPS RECOVERABLE TRUST DATED APRIL 23,

18 1996, BILLIE L. PHILLIPS, Trustee; JUDY LYNN QUINT, an individual;

19 RONALD CHARLES WEEBER, an individual; LUCILE ALICE

20 NORTHCOTE TRUST DATED MAY 29, 1996, BILLIE L. PHILLIPS,

21 Successor Trustee,

22 Plaintiffs-Respondents,

23 v.

24 GROUP I: BENSON-MONTIN-GREER DRILLING CORP., INC., a Delaware

25 corporation; ELIZABETH JEANNE TURNER CALLOWAY, an individual;

26 KELLY R. KINNEY, an individual; KATHERINE P. MILLER, an individual;

27 RONALD MICHAEL MILLER, an individual; VICKIE ROANN MILLER, an

28 individual; THOMAS R. MILLER, an individual; FRED E. TURNER, LLC, a
1 Delaware limited liability company; JOHN LEE TURNER, an individual;

2 LINDA VOITL a/k/a LINDA DAVIS, an individual; ESTATE OF WILLIAM

3 G. WEBB, deceased, JOHN G. TAYLOR, independent executor,

4 Defendants,

5 GROUP II: CHERYL U. ADAMS, an individual; E’TWILA J. AXTELL,

6 an individual; LANA GAY PHILLIPS, an individual;

7 Defendants-Petitioners,

8 and

9 BP AMERICA PRODUCTION COMPANY, a Delaware corporation;

10 COASTAL WATERS PETROLEUM COMPANY, INC., a Louisiana

11 corporation; ENERGEN RESOURCES CORPORATION, an Alabama

12 corporation; THE ESTATE OF ANNE B. LITTLE, FIRST SECURITY BANK

13 OF NEW MEXICO, as personal representative; HENRIETTA SCHULTZ, an

14 individual; THE FRANK AND HENRIETTA SCHULTZ REVOCABLE TRUST

15 DATED JANUARY 2, 1990, HENRIETTA SCHULTZ, Trustee; SCHULTZ

16 MANAGEMENT, LTD., a Texas limited partnership; J. GLENN TURNER, JR.,

17 LLC, a Delaware limited liability company; MARY FRANCES TURNER, JR.

18 TRUST, JP MORGAN CHASE BANK, NA, Trustee,

19 Defendants,

20 GROUP III: ALL UNKNOWN CLAIMANTS OF INTEREST IN THE

21 PREMISES ADVERSE TO THE PLAINTIFFS,

22 Defendants.

23 ORIGINAL PROCEEDING ON CERTIORARI

24 John A. Dean, Jr., District Judge

25 Gallegos Law Firm, P.C.

26 Jake Eugene Gallegos

27 Michael J. Condon
1 Santa Fe, NM 

2 for Petitioners Group I

3 Miller Stratvert P.A.

4 Dylan O’Reilly

5 Luke Salganek

6 Santa Fe, NM

7 for Petitioners Group II

8 Cuddy & McCarthy, LLP

9 John F. McCarthy, Jr.

10 Arturo L. Jaramillo

11 Y. Jun Roh 

12 Santa Fe, NM

13 Nixon Shefrin Hensen Ogburn, P.C.

14 Herbert A. Delap

15 Greenwood Village, CO

16 for Respondents T.H. McElvain Oil & Gas Limited Partnership, et al.,

17 Carson Ryan LLC

18 Joel M. Carson, III

19 Roswell, NM

20 for Amicus Curiae Landmen’s Association
1 OPINION

2 VIGIL, Justice.

3 I. INTRODUCTION

4 {1} The underlying claim giving rise to this controversy constitutes a collateral

5 attack, requiring us to determine whether it is apparent on the face of a 1948 quiet

6 title judgment that the district court, which entered said judgment, affirmatively

7 lacked jurisdiction over certain parties because they were notified by publication. It

8 is alleged that in the 1948 lawsuit such notice violated the Due Process Clause,

9 depriving the district court of jurisdiction. Only when a party’s whereabouts are not

10 reasonably ascertainable following diligent search and inquiry can constructive notice

11 substitute for personal notice of suit. Here, constructive service of process by

12 publication satisfied due process and established the 1948 district court’s personal

13 jurisdiction. Therefore, the district court’s 1948 quiet title judgment was not void,

14 and, accordingly, we reverse the judgment of the Court of Appeals.

15 II. BACKGROUND

16 {2} This opinion addresses the consolidated appeals of two groups of Defendants

17 from a Court of Appeals ruling favorable to T.H. McElvain Oil & Gas Limited

18 Partnership, et al., (Plaintiffs). See T.H. McElvain Oil & Gas Ltd. P’ship v. Benson19 Montin-Greer Drilling Corp., 2015-NMCA-004, ¶ 55, 340 P.3d 1277. The identities
18 The record indicatesthat while David Miller had purchased the Property from

1

19 the Wilsons, Thomas Miller may have contributed one-half of the purchase price to

20 possess an undivided one-half interest in the Property.

2

1 of the numerous parties and undisputed facts underlying the case are as follows.

2 {3} In 1927 W.W. McEwan conveyed by general warranty deed fee-simple title in

3 160 acres of land in San Juan County, New Mexico (the Property) to Judson Wilson,

4 Eva Wilson, and Mabel Wilson, as joint tenants with the right of survivorship. The

5 Wilsons, according to that deed, were “of San Diego, California.” The following year,

6 on August 16, 1928, the Wilsons executed a general warranty deed in San Diego,

7 conveying the Property to David Miller, subject to the following reservation:

8 [E]xcepting and reserving to the grantors herein the oil and gas existing

9 or found therein, with the right to enter on for prospecting or developing

10 same, provided they must pay all damage to land or crops in prospecting

11 or development.

12 {4} On March 14, 1931, David Miller conveyed by quitclaim deed his interest in

13 the Property to his brother, Thomas Miller. The quitclaimdeed to Thomas Miller was 1

14 silent as to any reservation clouding fee-simple title. Thomas Miller did not record

15 the deed until April 29, 1937, after David Miller’s death. David Miller had also

16 bequeathed his property in full to Thomas Miller.

17 {5} Judson Wilson died on May 16, 1929, and Eva Wilson died on December 17,
3

1 1944, leaving Mabel Wilson asthe only surviving joint tenant from the original W.W.

2 McEwan deed. Nothing in the record indicatesthat after 1928 Judson and Eva Wilson

3 took any action regarding the Property.

4 {6} Mabel Wilson, the remaining joint tenant, lived in San Diego until her death

5 in 1970. Mabel had married Charles Weeber prior to 1944, and thereafter went by her

6 married name of Mabel W. Weeber. Following her death, Mabel’s estate was

7 probated in the Superior Court for San Diego County. Her estate identified an interest

8 in residential property in San Diego, but made no claim to real property in New

9 Mexico. Charles Weeber’s estate similarly made no claim to real property in New

10 Mexico upon his death in 1978.

11 {7} On October 21, 1948, Thomas Miller filed a quiet title action in the District

12 Court for San Juan County. In his complaint, Thomas Miller alleged that he was the

13 owner in fee simple of a total of 931 acres in San Juan County (the Subject Acreage),

14 with that acreage encompassing the 160-acre Property presently in dispute. Over fifty

15 individuals were named as defendants—all of whom were named as defendants if

16 living, or if deceased, by their unknown heirs—with Judson Wilson, Eva Wilson, and

17 Mabel Wilson each making the list. Thomas Miller’s attorney verified under oath the

18 allegations of the complaint, which in part stated that
4

1 if any [d]efendants herein . . . still are living, and reside in or have their

2 places of residence in the State of New Mexico, the said [d]efendants

3 have secreted themselves so that service of process cannot be had upon

4 them in this cause, and that the only way in which said [d]efendants can

5 be served herein is by publication.

6 The complaint also alleged that any unknown heirs of deceased were “unknown to the

7 [p]laintiff, and [p]laintiff has been unable to learn or determine the names, places of

8 residence, Post Office addresses and whereabouts of the said unknown heirs, after

9 diligent search and inquiry for the same.” Based on the allegations in the verified

10 complaint, service of process was accomplished by publication of a Notice of Action

11 Pending in the Times Hustler, a weekly newspaper published in San Juan

12 County—specifically Farmington, New Mexico. Notice of the action ran in the paper

13 for four successive weeks.

14 {8} On November 19, 1948, the Sheriff of San Juan County attempted to serve

15 notice on all parties and submitted a sheriff’s return stating that he

16 diligently searched and inquired for the [d]efendants, and each of them,

17 in the above-entitled cause; that after such search and inquiry, I have

18 been unable to find any of the [d]efendants in San Juan County, New

19 Mexico, and I have been unable to find the Post Office addressees,

20 places of residence, or whereabouts of the [d]efendants, or either of

21 them.

22 No named defendant entered an appearance in the quiet title action, but some filed a

23 disclaimer of interest in the Subject Acreage. As such, a quiet title judgment (the
5

1 1948 judgment) was entered on December 20, 1948, quieting title to the Subject

2 Acreage—which, again, included the Property—in favor of Thomas Miller. The 1948

3 judgment provided that Thomas Miller was the owner of the Subject Acreage in “Fee

4 Simple Title,” and

5 that after diligent search and inquiry the post office addresses, places of

6 residence, and whereabouts of all the [d]efendants’ herein [excepting

7 those that filed a Disclaimer of Interest], all are unknown and

8 ascertained; and that none of the said [d]efendants, other than those set

9 out above, can be personally served with process in this cause.

10 {9} Thomas Miller thereafter exercised fee-simple ownership over the Property. On

11 January 15, 1950, Thomas Miller conveyed the Subject Acreage to V.H. McRee while

12 reserving three-quarters of the mineral rights. Then, in 1952, the Property was

13 committed to the San Juan 32-5 federal unit area, of which Stanolind Oil and Gas

14 Company was the operator. In 1953, Miller and McRee executed an oil, gas, and

15 mineral lease with Stanolind Oil and Gas Company—and McRee reserved a one16 eighth royalty interest in the minerals produced from the lease. Stanolind Oil

17 Company became Pan American Petroleum Corporation in 1957 and made three

18 assignments of its leasehold interest to J. Glenn Turner, ultimately conveying to him

19 all of its interest appurtenant to the Property. J. Glenn Turner subsequently, in 1959,

20 1960, and 1961, made various other assignments of his mineral interests appurtenant
6

1 to the Property before dying in 1975 and leaving his property in trust for his son, J.

2 Glenn Turner, Jr., and a Dallas bank.

3 {10} In 1956 V.H. McRee conveyed his interest in the Property, by warranty deed,

4 to H.F. and Freda Axtell. The Axtells thereafter executed separate trust agreements,

5 naming E’Twila Axtell, Cheryl Adams, and Lana Phillips as beneficiaries. As of May

6 2008 the beneficiaries had become successor co-trustees of the trusts through a series

7 of quitclaim transactions, thus entitling them to the one-eighth royalty interest

8 stemming from McRee’s one-quarter interest in the mineral rights, as conveyed by

9 Miller in 1950.

10 {11} As noted, Mabel Weeber—the surviving joint tenant from the McEwan

11 deed—and her husband, Charles Weeber, died in the 1970s without claiming any

12 property in New Mexico. The 1948 San Diego City Directory contains a listing for

13 “Weeber Chas E (Mabel W).” The directory indicated that Charles and Mabel Weeber

14 lived at 3767 Pershing Avenue. Historical versions of the directory, from 1926 and

15 1930, listed that same Pershing address for then-living Judson and Eva Wilson.

16 {12} Again, there is nothing in the record indicating that Judson, Eva, or Mabel

17 Wilson took any action regarding the Property after granting the 1928 deed to David

18 Miller. Indeed, it was not until 2002 when a landman representing a Plaintiff in this
7

1 case, T.H. McElvain Oil & Gas Limited Partnership (T.H. McElvain Oil & Gas),

2 informed Judy Lynn Quint and Ronald Charles Weeber—Mabel Wilson’s successors3 in-interest—that they were “the current owners of the oil and gas” interests

4 appurtenant to the Property. Subsequently, Judy Lynn Quint and Ronald Charles

5 Weeber entered into a five-year lease with T.H. McElvain Oil & Gas for $2,320.00

6 each.

7 {13} The Property presently lies beneath Navajo Lake. In 2007 the appurtenant

8 mineral interests greatly increased in value after Energen Resources successfully

9 drilled coal seamgas wells in the underlying bedrock, and the Property was then-after

10 incorporated into two Fruitland coalbed well-spacing units. Energen Resources holds

11 hundreds of thousands of dollars in escrow pending resolution of this litigation—the

12 primary dispute in this case, then, concerns ownership of those mineral rights.

13 {14} The procedural posture of this case is as follows. In 2010 Plaintiffs—T.H.

14 McElvain Oil & Gas, and other successors-in-interest to the 1927 joint tenancy

15 granted to Judson Wilson, Eva Wilson, and Mabel Wilson by W.W. McEwan—filed

16 suit to quiet title in the mineral interests appurtenant to the Property, initially making

17 no mention of the 1948 quiet title judgment. After becoming aware of the 1948

18 judgment in the course of the pleadings, Plaintiffs were forced to change course and,
14 The alignment of the parties and briefing in this case do not match the case

2

15 caption. In its order the district court quieted the right, title, and ownership of the oil

16 and gas leasehold estate appurtenant to the Property in Benson-Montin-Greer Drilling

17 Corp., Inc.; Henrietta Schultz Trustee, Shultz Management Ltd.; Elizabeth Jeanne

18 Turner Calloway; J. Glenn Turner, Jr., LLC; John Lee Turner; Fred E. Turner LLC;

19 and Mary Francis Turner, Jr. Trust, J.P. Morgan Chase Bank N.A. Trustee. Those

20 interests herein represent Group 1. The district court also quieted right, title, and

21 ownership of a 3.125% mineral interest royalty in the Property in Cheryl U. Adams,

22 E’Twila J. Axtell, and Lana Gay Phillips. Those interests herein represent Group 2.

8

1 hence, challenged the constitutional effectiveness of the service of process made by

2 publication on their predecessors-in-interest. In essence, Plaintiffs trace their claim

3 to title back to the reservation of mineral interests in the 1928 deed from the Wilsons

4 to David Miller, alleging that reservation is still effective because the allegedly

5 insufficient service of process on the Wilsons voided the 1948 judgment as it applied

6 to them.

7 {15} The named Defendants in the instant suit fall into two groups: Group 1 (the

8 Benson group) and Group 2 (the Axtell Group). The parties in Group 1 2

9 counterclaimed to quiet title in the Property’s oil and gas leasehold interests, while

10 some parties in Group 2 counterclaimed to quiet title in a percentage of royalty

11 interests flowing from the Property’s mineral production. Group 1 Defendants derive

12 their claim to title in the Property’s oil and gas leasehold interests from the 1948

13 judgment in favor of Thomas Miller, and subsequent assignments made by Miller,
9

1 Pan American Petroleum Corporation, and J. Glenn Turner. This Court has previously

2 quieted title in the Property in favor of some of the Group 1 Defendants, following

3 an ancillary probate of J. Glenn Turner’s estate. See M.H. Clark v. Benson-Montin4 Greer Drilling Corp., No. 78-1260 (N.M. Sup. Ct. Jul. 12, 1982) (mandate). Group

5 2 Defendants derive their claim to title in royalty interests in the Property from V.H.

6 McRee’s reservation of a one-eighth royalty interest in the minerals produced by his

7 lease to Stanolind Oil and Gas Company, and the subsequent transaction between

8 V.H. McRee and Harrison and Freda Axtell that resulted in various trust agreements

9 benefitted by the royalties.

10 {16} The parties filed cross-motions for summary judgment claiming title to the

11 relevant mineral interests. To assist the district court in determining the ownership of

12 the mineral rights at issue, the district court appointed a special master pursuant to

13 Rule 1-053 NMRA. The special master determined that the Group 1 and Group 2

14 Defendants were entitled to summary judgment. The special master rejected the

15 Plaintiffs’ collateral attack on the 1948 quiet title judgment stating, “there is nothing

16 to indicate that Thomas Miller had information regarding Mabel Weeber’s

17 whereabouts or that her whereabouts could be identified through reasonable

18 diligence; therefore, the [c]ourt’s conclusion in 1948 that she could not be located for
10

1 personal service appears appropriate.” The special master determined that any

2 investigation by Thomas Miller in 1948 would not have been likely to locate Mabel

3 Weeber for service of process because she did not appear in the 1948 San Diego

4 telephone directory as Mabel Wilson, and also because, by 1948, both Judson and

5 Eva Wilson had died.

6 {17} The special master further concluded that the Plaintiffs’ claim to title was

7 barred by laches, waiver, and estoppel because “[t]he Wilsons and their successors

8 did nothing to claim any ownership interest in the oil and gas connected to the

9 property from the date of the deed to David [Miller] in 1928 until 2002 when

10 McElvain Oil & Gas sought to enter into a lease.” The special master also recognized

11 that there was not an ancillary probate proceeding for either of the estates of Mabel

12 or Charles Weeber that listed ownership interest in the Property as being part of their

13 estates. The district court entered an order adopting the special master’s report and

14 recommendations, and ruled in favor of Defendants by granting their motion for

15 summary judgment. Title was thus quieted in favor of the Group 1 and Group 2

16 Defendants.

17 {18} Plaintiffs then appealed the district court’s order, and the Court of Appeals

18 reversed the district court’s grant of summary judgment in favor of Defendants. T.H.
11

1 McElvain Oil & Gas, 2015-NMCA-004, ¶ 4. The Court of Appeals concluded that

2 Thomas Miller had failed to exercise diligence and good faith in notifying the

3 Wilsons of the 1948 quiet title action, enabling Plaintiffs’ collateral attack on the

4 1948 judgment for lack of personal jurisdiction. Id. ¶ 55. The Court of Appeals

5 further concluded that the record did not support a finding of waiver, laches, and

6 estoppel on the part of Plaintiffs. Id. ¶ 55. Group 1 and Group 2 Defendants then

7 appealed the Court of Appeals opinion to this Court, and we granted certiorari. See

8 T.H. McElvain Oil & Gas Ltd. P’ship v. Benson-Montin-Greer, Drilling Corp., 2014-

9 NMCERT-012. 

10 {19} This appeal rests upon the validity of the 1948 judgment quieting title to the

11 Property in favor of Thomas Miller. Our determination of this ultimate issue rests

12 upon whether the constructive service-of-process made by publication upon the

13 Wilsons back in 1948 met constitutional standards of due process and was in

14 accordance with the Rules of Civil Procedure then in effect. If the 1948 judgment is

15 valid, Plaintiffs’ right to the mineral interests is foreclosed and Defendants would be

16 entitled to judgment as a matter of law. On the other hand, if the 1948 judgment is

17 void, Plaintiffs may continue to adjudicate the merits of their claim in accordance

18 with this opinion. To support their claim Plaintiffs make a collateral attack on the
12

1 1948 judgment, which can only succeed if “lack of jurisdiction appears affirmatively

2 on the face of the judgment or in the judgment roll or record, or is made to appear in

3 some other permissible manner.” See In re Estate of Baca, 1980-NMSC-135, ¶ 11,

4 95 N.M. 294, 621 P.2d 511. In deciding the validity of the 1948 judgment we are

5 called upon to consider not only the inherent complexities of a successful collateral

6 attack on a longstanding judgment, but also the competing principles of finality in

7 court judgments and the right to due process before the deprivation of one’s property

8 by another. Before we address these important legal principles in the context of the

9 positions taken by the parties, we pause to articulate the legal standards of review for

10 summary judgment in New Mexico with respect to the specific legal issues presented

11 by this appeal.

12 III. STANDARD OF REVIEW

13 {20} The district court, upon cross motions for summary judgment, granted

14 Defendants’ motion. We review that grant of summary judgment de novo. Hydro Res.

15 Corp. v. Gray, 2007-NMSC-061, ¶ 14, 143 N.M. 142, 173 P.3d 749. Summary

16 judgment is appropriate where the facts are undisputed and the movant is entitled to

17 judgment as a matter of law. Id. We view the facts in the light most favorable to the

18 party opposing the motion and indulge all reasonable inferences in their favor. Smith
13

1 v. Durden, 2012-NMSC-010, ¶ 5, 276 P.3d 943. New Mexico Courts generally view

2 summary judgment with disfavor. Romero v. Philip Morris, Inc., 2010-NMSC-035,

3 ¶ 8, 148 N.M. 713, 242 P.3d 280. Because the district court granted summary

4 judgment in favor of Defendants, we must review the facts in the light most favorable

5 to Plaintiffs.

6 {21} A party moving for summary judgment must meet its initial burden of

7 establishing a prima facie case for summary judgment. See Roth v. Thompson, 1992-

8 NMSC-011, ¶ 17, 113 N.M. 331, 825 P.2d 1241. Once a moving party meets that

9 initial burden of establishing evidence that there are no issues of material fact, and

10 that judgment as a matter of law may be appropriate, the burden shifts to the

11 nonmoving party to alternatively establish evidence that issues of material fact remain

12 requiring a trial on the merits. See Romero, 2010-NMSC-035, ¶ 10 (citations

13 omitted). The “evidence adduced must result in reasonable inferences.” Id. (citations

14 omitted). “An inference is not a supposition or a conjecture, but is a logical deduction

15 from facts proved and guess work is not a substitute therefor.” Id. (internal quotation

16 marks and citation omitted).

17 {22} Defendants offer as evidence in support of their motion for summary judgment

18 the 1948 quiet title judgment granting their predecessors-in-interest title to the
14

1 mineral interests in the Property, which they thereby assert entitles them to judgment

2 as a matter of law. To successfully rebut Defendants’ motion for summary judgment,

3 Plaintiffs needed to adduce evidence establishing the existence of material issues of

4 fact justifying a trial on the merits as to whether that 1948 judgment was void and did

5 not bind Plaintiffs’ predecessors-in-interest. See Romero, 2010-NMSC-035, ¶ 10.

6 Void judgments can be subject to a collateral attack. Nesbit v. City of Albuquerque,

7 1977-NMSC-107, ¶ 12, 91 N.M. 455, 575 P.2d 1340. A litigant may collaterally

8 attack a judgment by impeaching that judgment with matters outside of its record.

9 See Arthur v. Garcia, 1967-NMSC-205, ¶ 6, 78 N.M. 381, 431 P.2d 759 (referring

10 to Lucus v. Ruckman, 1955-NMSC-014, ¶ 12, 59 N.M. 504, 287 P.2d 68, overruled

11 on other grounds by Kalosha v. Novick, 1973-NMSC-010, ¶ 12, 84 N.M. 502, 505

12 P.2d 845). Plaintiffs’ rebut of Defendants’ motion for summary judgment thus needed

13 to advert to evidence demonstrating that the 1948 judgment should be set aside, and

14 “one who challenges an unreversed judgment regularly entered has a very difficult

15 task.” City of Albuquerque v. Huddleston, 1951-NMSC-032, ¶ 12, 55 N.M. 240, 230

16 P.2d 972 (citations omitted).

17 {23} We begin our examination of the merits of Plaintiffs’ claim by acknowledging

18 the high standard that 
15

1 in New Mexico that every presumption consistent with the record is

2 indulged in favor of the jurisdiction of courts of general jurisdiction

3 whose judgments cannot be questioned when attacked collaterally,

4 unless lack of jurisdiction appears affirmatively on the face of the

5 judgment or in the judgment roll or record, or is made to appear in some

6 other permissible manner.”

7 In re Estate of Baca, 1980-NMSC-135, ¶ 11. Here, Plaintiffs allege it is facially

8 apparent that the district court entering the 1948 judgment affirmatively lacked

9 personal jurisdiction over Plaintiffs’ predecessors-in-interest due to insufficient

10 service of process under the Due Process Clause, U.S. Const. amend. XIV, § 1,

11 rendering the judgment void. Defendants, by contrast, assert that the service of

12 process by publication in the 1948 district court proceedings met constitutional

13 standards and was therefore effective for the district court to acquire personal

14 jurisdiction over all of the defendants, including Plaintiffs’ predecessor-in-interest,

15 Mabel Weeber.

16 {24} By our de novo review of Defendants’ motion forsummary judgment, we must

17 also consider what is necessary to lodge a meritorious collateral attack on a

18 longstanding judgment, where the collateral attack alleges voidness for the lack of

19 personal jurisdiction because the method of personal service did not satisfy the

20 requirements of due process. We review those interrelated issues of law de novo. City

21 of Aztec v. Gurule, 2010-NMSC-006, ¶ 5, 147 N.M. 693, 228 P.3d 477 (citations
16

1 omitted).

2 IV. DISCUSSION

3 A. Due Process Requires Adequate Notice

4 {25} The Due Process Clause of the Fourteenth Amendment to the United States

5 Constitution prohibits deprivation of property absent adequate procedural safeguards.

6 U.S. Const. amend. XIV, § 1. The right to be heard in a court of law in response to

7 proceedings seeking to deprive one of one’s own property is a fundamental

8 requirement of due process. “The fundamental requisite of due process of law is the

9 opportunity to be heard.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306,

10 314 (1950) (internal quotation marks and citation omitted). “An elementary and

11 fundamental requirement of due process in any proceeding which is to be accorded

12 finality is notice reasonably calculated, under all the circumstances, to apprise

13 interested parties of the pendency of the action and afford them an opportunity to

14 present their objections.” Id. (citations omitted). A judgment entered absent sufficient

15 service of process upon a defendant violates due process and is void as to the

16 defendant for want of personal jurisdiction. See id. at 313 (noting “the right of [a

17 state’s] courts to determine the interest of all claimants, resident or nonresident,

18 provided its procedure accords full opportunity to be heard”); see also Johnson v.
17

1 Shuler, 2001-NMSC-009, ¶ 11, 130 N.M. 144, 20 P.3d 126 (Jurisdiction over the

2 person embraces notions of contacts with the State and sufficiency of notice of the

3 action.” (internal quotation marks and citation omitted)); In re Estate of Baca, 1980-

4 NMSC-135, ¶ 10, ([W]hen attacked for failure of service of process, [a judgment] is

5 void as to those persons not served and their successors.” (citations omitted));

6 Restatement (Second) on Judgments § 65 (Am. Law Inst. 1982) (“A court has

7 authority to render judgment in an action when the court has jurisdiction of the

8 subject matter of the action . . . and . . . [a]dequate notice has been afforded the

9 party.”)

10 {26} To meet the fundamental requirements of due process, a plaintiff must

11 undertake a diligent and good faith effort to locate defendants and serve them

12 personally with notice. Campbell v. Doherty, 1949-NMSC-030, ¶¶ 30-31, 53 N.M.

13 280, 206 P.2d 1145. But personal service is not always feasible, and in such cases

14 constructive notice may satisfy due process. Mullane, 339 U.S. at 317. To meet

15 constitutional standards,

16 [t]he notice must be of such nature as reasonably to convey the required

17 information and it must afford a reasonable time for those interested to

18 make their appearance, [b]ut if with due regard for the practicalities and

19 peculiarities of the case these conditions are reasonably met the

20 constitutional requirements are satisfied.
18

1 Id. at 314-15 (citations omitted).

2 {27} Notice of court proceedings cannot just be a mere gesture, else it will not pass

3 constitutional muster—“[t]he means employed must be such as one desirous of

4 actually informing the absentee might reasonably adopt to accomplish it. The

5 reasonableness and hence the constitutional validity of any chosen method may be

6 defended on the ground that it isin itself reasonably certain to inform those affected.”

7 Mullane, 339 U.S. at 315 (citations omitted).

8 {28} Notice by publication, then, is proper in some circumstances as a last resort.

9 See Campbell, 1949-NMSC-030, ¶ 31 (“Constructive service . . . is only resorted to

10 from necessity.” (internal quotation marks and citation omitted)). It was not always

11 so. Surveying the history of constructive service, the United States Supreme Court

12 explained that “in in rem or quasi in rem proceedings in which jurisdiction was based

13 on the court’s power over property within its territory, constructive notice to

14 nonresidents was traditionally understood to satisfy the requirements of due process.”

15 Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 796 n.3 (1983) (citing Shaffer v.

16 Heitner, 433 U.S. 186, 196-205 (1977)). In in personam proceedings, by contrast, due

17 process traditionally required personal service to establish a state court’s personal

18 jurisdiction over an individual who did not submit to jurisdiction. Id. (citations
19

1 omitted). This distinction is no longer relevant. In Mullane, the Supreme Court

2 rejected the idea that the requirements of due process as they apply to constructive

3 service vary depending on whether actions are in rem or in personam. 339 U.S. at

4 312; see also Mennonite, 462 U.S. at 796 n.3.

5 {29} Mullane clarified, in all cases, the circumstances in which constructive notice

6 by publication comports with due process. Mullane concerned the constitutional

7 sufficiency of notice of a judicial settlement of a common trust fund account that was

8 provided by the trustee to beneficiaries of the fund. 339 U.S. at 307. While

9 beneficiaries previously had been notified about trust investments bymail—as all the

10 names and addresses of beneficiaries fromparticipating estates were contained in the

11 bank’s records—notice to beneficiaries about the judicial settlement of the common

12 trust fund account was effected solely through publication. Id. at 309-10, 318.

13 Further, the publication failed to identify each individual beneficiary or each

14 participating estate or trust. Id. at 310. This, the Supreme Court held, violated the Due

15 Process Clause and, therefore, constituted ineffective service of process. Id. at 319

16 (“The statutory notice to known beneficiaries is inadequate, not because in fact it fails

17 to reach everyone, but because under the circumstances it is not reasonably calculated

18 to reach those who could easily be informed by other means at hand.”).
20

1 {30} Following Mullane, in Mennonite Board of Missions v. Adams, the Supreme

2 Court held that an Indiana tax sale statute, which required notice to a mortgagee by

3 publication only, violated due process. 462 U.S. at 798. The Supreme Court held that

4 “unless the mortgagee is not reasonably identifiable, constructive notice alone does

5 not satisfy the mandate of Mullane.” Id. The Court explained that “[n]otice by mail

6 or other means as certain to ensure actual notice is a minimum constitutional

7 precondition to a proceeding which will adversely affect the liberty or property

8 interests of any party, whether unlettered or well versed in commercial practice, if its

9 name and address are reasonably ascertainable.” Id. at 800.

10 {31} In light of Mullane and Mennonite, we make clear that constructive service of

11 process by publication satisfies due process if and only if the names and addresses of

12 the defendants to be served are not “reasonably ascertainable.” Mennonite, 462 U.S.

13 at 800; see also Schroeder v. City of N.Y., 371 U.S. 208, 212-13 (1962) (“The general

14 rule that emerges from the Mullane case is that notice by publication is not enough

15 with respect to a person whose name and address are known or very easily

16 ascertainable . . . .”); Mullane, 339 U.S. at 317 (“This Court has not hesitated to

17 approve of resort to publication as a customary substitute . . . where it is not

18 reasonably possible or practicable to give more adequate warning . . . and [this means
21

1 of notification] creates no constitutional bar to a final decree foreclosing their

2 rights.”); Clark v. LeBlanc, 1979-NMSC-034, ¶ 6, 92 N.M. 672, 593 P.2d 1075 (“It

3 is clear that due process prohibits the use of constructive service where it is feasible

4 to give notice to the defendant in some manner more likely to bring the action to his

5 attention.” (citing Mullane, 339 U.S. 306)). In this case, we apply the principle

6 articulated in both Mennonite and Mullane to determine if constructive service by

7 publication satisfied due process and thereby established the personal jurisdiction of

8 the 1948 district court over Plaintiffs’ predecessors in interest. See Harper v. Va.

9 Dep’t. of Tax’n, 509 U.S. 86, 97-98 (1993)(holding that unless the Court “ ‘reserve[s]

10 the question whether its holding should be applied to the parties before it,’ ” a new

11 rule articulated by the Court will “apply retroactively” (quoting James B. Beam

12 Distilling Co. v. Georgia, 501 U.S. 529, 539 (1991) (opinion of Souter, J.)).

13 {32} Furthermore, we note that the New Mexico Rules of Civil Procedure, both as

14 they exist today and as they existed in 1948, effectuate the requirements of due

15 process set forth in Mullane and its progeny. See, e.g., Rule 1-004(E) NMRA, comm.

16 cmt. (“Rule 1-004(E)(1) makes explicit in the rule the general test for

17 constitutionally-adequate service of process established in Mullane . . . .”). For

18 example, in 1948, the New Mexico Rule of Civil Procedure 4(g) required a party
22

1 seeking to serve notice by publication to “‘file a sworn pleading or affidavit, stating

2 that any defendant’” had either gone out of state, concealed himself or herself within

3 the state, otherwise avoided service, or that his or her name or place of residence are

4 unknown. Campbell, 1949-NMSC-030, ¶ 24 (quoting Rule 4(g) of the Rules of Civil

5 Procedure. See NMSA 1941, § 19-101(4)(g) (Vol. 2)). Such a showing required the

6 clerk of the court to issue notice of the action in a publication in the county in which

7 the action was pending. See id. Compliance with this rule was “‘considered as

8 sufficient notice of summons and valid in law,’” giving a district court personal

9 jurisdiction over relevant defendants. Id. (quoting NMSA 1941, § 19-101(4)(g) (Vol.

10 2)). We also acknowledge that in light of Mullane, and recognized by this Court even

11 before Mullane, the exercise of diligence and good faith to locate a defendant are

12 implicit prerequisites to effective service of process by publication. Campbell, 1949-

13 NMSC-030, ¶ 31 (citing NMSA 1941, § 19-101(4)(g) (Vol. 2)); see also Mullane,

14 339 U.S. at 315 (holding, with respect to known defendants, that “[t]he means

15 employed must be such as one desirous of actually informing the absentee might

16 reasonably adopt to accomplish it”).

17 B. Defendants’ Predecessors-in-Interest Effected Service Upon Plaintiffs’

18 Predecessors-in-Interest in Compliance With the Due Process Clause and

19 the New Mexico Rules of Civil Procedure
23

1 {33} We consider whether the notice preceding the 1948 judgment satisfied the

2 aforementioned standards of due process. Plaintiffs allege that Mabel Weeber, their

3 predecessor-in-interest, did not receive adequate notice of the 1948 quiet title lawsuit

4 filed by Thomas Miller. Therefore, they argue, the judgment granting Thomas Miller

5 title and negating the Wilsons’ 1928 reservation of mineral interests in the Property

6 was void as to Mabel Weeber. Defendants argue that Plaintiffs’ predecessors-in7 interest were either unknown or missing in 1948, and that the district court thus acted

8 in conformance with due process by authorizing constructive service of process on

9 Mabel Weeber. Defendants point out that both Thomas Miller and the Sheriff of San

10 Juan County affirmatively stated in 1948 that they could not ascertain through

11 diligent effort the addresses or places of residence for certain defendants named in the

12 complaint, including Mabel Weeber. Accordingly, Defendants assert that constructive

13 service by publication in the Times Hustler, a local Farmington newspaper, satisfied

14 due process.

15 {34} The summary judgment granted to Defendants by the district court was based

16 upon the recommendations of the special master, who in reaching his decision below

17 distinguished the instant case from Mullane. In Mullane, the trustee had the names

18 and addresses of the beneficiaries on its books, and it had used mail to communicate
24

1 with the beneficiaries in the past. In contrast to Mullane, the district court determined

2 that “there is nothing to indicate that Thomas Muller had information regarding

3 Mabel Weeber’s whereabouts or that her whereabouts could be identified through

4 reasonable diligence.” We agree.

5 {35} We begin by examining the record of the 1948 district court proceedings. It

6 reveals that the district court had before it a verified complaint and sheriff’s return

7 specifically indicating that, after diligent search and inquiry, Plaintiffs’ predecessors8 in-interest could not be located and personally served with process. The complaint

9 contains two specific allegations necessary to authorize notice by publication under

10 Rule 4(g). First, the complaint alleges that defendants living, or if deceased, their

11 unknown heirs, at some time made a claim of interest in the Property, and “that after

12 diligent search and inquiry” “the Plaintiff has been unable to learn or determine the

13 names, places of residence, Post Office addresses and whereabouts [of the unknown

14 heirs of any deceased defendants].” Second, the complaint contains the allegation that

15 if any defendants were still living and residing in New Mexico they could not be

16 located because they had secreted themselves so that personal service of process

17 could not be effected. See NMSA 1941, § 19-101(4)(g) (Vol. 2).

18 {36} Thus, in 1948, Judson and Eva Wilson were deceased, Mabel Wilson had
25

1 married and went by the name of Weeber, and that married name—and in

2 conjunction, her address under that name—was unknown. In order to personally serve

3 Mabel Wilson with process, Thomas Miller would have been required to ascertain her

4 new name and current address by first assuming that Mabel still lived in San Diego,

5 based on the sale of the Property twenty years earlier to his brother, David Miller.

6 Next, Thomas Miller would also have needed to acquire and search through the San

7 Diego City Directory from either 1926 or 1930 to find Judson and Eva Wilson’s San

8 Diego address. Then, in order to identify Mabel Wilson as Mabel Weeber, he would

9 have been required to search through San Diego’s public records for Eva Wilson’s

10 death certificate which named her daughter Mabel Weeber as her informant, or

11 alternatively, he would have been required to sift through twenty years of San Diego

12 Union newspaper obituary notices in order to find Eva Wilson’s obituary which

13 named Mabel Weeber as the daughter she left behind. To get that far along in the

14 search for Mabel Weeber, Thomas Miller would have been required to infer from the

15 1928 deed the exact familial relationship between Judson, Eva, and Mabel Wilson

16 (father, mother, and daughter). Plaintiffs rely upon this labyrinth to lead to the

17 discovery of Mabel Wilson, and they ask us to conclude today that because this path

18 was ostensibly available and since Mabel Wilson was not located back then that
26

1 Miller failed to make a diligent inquiry into her whereabouts.

2 {37} We indulge all reasonable inferences in Plaintiffs’ favor and conclude that the

3 diligence that was necessary to locate Mabel Wilson back in 1948 did not require this

4 level of effort or investigation, particularly in light of the facts, circumstances and

5 resources available in 1948. Today, with relatively easy access to the internet, social

6 media, and numerous global search engines, it is often not difficult to find persons

7 whose identity and whereabouts are necessary to effectuate personal service of

8 process. The world was quite different in 1948 in this regard. At the time, the task

9 would have undoubtedly been significantly more onerous and time consuming.

10 Further, the failure to find Mabel Weeber was not ipso facto evidence of a lack of

11 diligence under Rule 4(g) in 1948. We conclude that the facts premised on Miller’s

12 verified complaint and the sheriff’s return of service support the district court’s

13 conclusion “that after diligent search and inquiry the post office addresses, places of

14 residence, and whereabouts of all of the Defendants herein . . . all are unknown,” and,

15 thus, Mabel Wilson’s whereabouts were not readily ascertainable.

16 {38} Under the federal precedent interpreting due process requirements in the

17 context of constructive service of process, we conclude that the constructive notice

18 given in the underlying case was sufficiently “reasonably calculated” under the
27

1 circumstances as they existed in 1948. Mullane, 339 U.S. at 314; see also Mennonite,

2 462 U.S. at 799-800. Without additional evidence in the record that reveals a more

3 direct path toward Mabel’s identity and whereabouts in 1948, we reject Plaintiffs

4 theory that, on its face, the 1948 quiet title judgment was premised upon an obvious

5 lack of diligence on the part of Miller. 

6 C. Plaintiffs Fail to Mount a Successful Collateral Attack on the 1948

7 Judgment

8 {39} Our conclusion that the record before the 1948 district court did not reveal an

9 obvious lack of diligence to support a collateral attack finds support in other courts

10 that also have been called upon to consider the reasonableness of the search efforts

11 made in a prior, underlying case. In addition to the allegations in the record, we must

12 consider the reasonableness of the efforts made by Thomas Miller in the search for

13 Mabel Weeber. In determining the validity of the collateral attack on the 1948

14 judgment in this regard, we refrain from relying on speculation. Furthermore,

15 regarding the reasonableness of the search Miller would have needed to make to

16 ascertain Mabel Wilson’s whereabouts, we note that other courts have held that even

17 “a search of the conveyance records to identify parties with mineral interests would

18 be unduly burdensome” and, in such cases, constructive notice may be “sufficient to

19 satisfy the requirements of due process.” Davis Oil Co. v. Mills, 873 F.2d 774, 791
28

1 (5th Cir. 1989); see also Aarco Oil & Gas Co. v. EOG Res. Inc., 20 So. 3d 662, 669-

2 670 (Miss. 2009).

3 {40} For example, in Davis Oil, the holder of a mineral lease sought to invalidate a

4 judicial sale of land on due process grounds because he was never given actual notice

5 of the sale. 873 F.2d at 775. Still, the Fifth Circuit determined that constructive notice

6 satisfied the requirements of due process because a search of the conveyance records

7 would be unduly cumbersome. Id. at 789. The federal court of appeals explained:

8 [W]e do not construe Mennonite asrequiring actual notice to every party

9 who has a publicly recorded interest in the subject property. . . .

10 Accordingly, the reasonableness of constructive notice in a particular

11 case may turn on the nature of the property interest at stake and the

12 relative ease or difficulty of identifying such interest holders from the

13 land records and also the existence of alternative means of insuring the

14 receipt of notice.

15 Id. at 790 (citations omitted). The Davis Oil court noted, moreover, that the lessee

16 there easily could have assured actual notice of the sale by paying a nominal fee to

17 place his name and address on file in the mortgage records. Id. at 790-91. While the

18 lessee did not waive his due process rights by failing to place his name and address

19 on file, the availability of a means to protect his property interest informed whether

20 his identity was reasonably ascertainable and, hence, whether due process required

21 actual notice. Id. at 78-90.
29

1 {41} More recently, in Aarco Oil, the Mississippi Supreme Court held that

2 constructive notice by publication as to owners of mineral interests regarding a 1942

3 tax sale did not violate their due process rights. 20 So. 3d at 670. In that case, the

4 plaintiffs attacked the validity of the 1942 tax sale because the county conducting the

5 tax sale did not provide notice to the then-mineral owners, “either by mail or personal

6 service, in violation of federal and state due process requirements.” Id. at 667. The

7 plaintiffs contended that the statutorily-required newspaper notices of the sale and

8 “notice to the surface owners [only] was insufficient to satisfy the due process rights

9 of the mineral owners.” Id. at 668. The Mississippi Supreme Court disagreed,

10 explaining that under Mennonite and Mullane, a governmental body is not obligated

11 to undertake extraordinary efforts to discover the identity and whereabouts of all

12 interested parties to the sale. Id. (citing Mennonite, 462 U.S. at 795; Mullane, 339

13 U.S. at 314). The Court additionally noted that the plaintiffs’ predecessors could have

14 protected their interests by ensuring their severed mineral interest was separately

15 assessed for taxes. Id. at 670. The Court concluded that “because the identity and

16 whereabouts of the owners of the severed mineral interests were not readily

17 ascertainable, publication and notice to the surface owners [only] were sufficient to

18 satisfy due process.” Id. at 670.
30

1 {42} The conclusions reached in Aarco Oil, and Davis Oil—that publication notice

2 afforded adequate due process on those facts—are equally applicable to the 1948

3 judgment in this case. Here, although not dispositive in our analysis, the owners of

4 the mineral estate at the time of the 1948 judgment easily could have assured actual

5 notice of the sale by taking some care to protect their investment. Neither Judson nor

6 Eva Wilson had made a record of their ownership interests in probate following their

7 deaths, and Mabel Wilson took no action during her lifetime to ensure an address was

8 on record in the county where the Property was located. While not necessary to

9 protect one’s interest, we consider those facts persuasive to our instant analysis of

10 whether Miller could have discovered the Wilsons’ whereabouts with reasonable

11 diligence. Miller, moreover, was under no obligation to comb San Diego records to

12 identify individuals who might appear to have an interest in the Property and who

13 were not reasonable ascertainable.

14 {43} As has been the case in other jurisdictions, and in line with the relevant federal

15 precedent in Mennonite and Mullane, we again conclude that there was not a readily

16 apparent lack of diligence by Miller in searching for Mabel Wilson’s whereabouts.

17 Mabel Wilson’s address was not in any of the original deeds, and she had changed her

18 name by the time of the 1948 action. Plus, she did not exercise ownership in the
31

1 Property between 1928 and 1948, and was only one of many potential interest holders

2 named as defendants in Miller’s complaint. In light of those facts, it is apparent from

3 the record in the 1948 judgment that Mabel Wilson was not ascertainable. Nor can

4 we conclude from the record facts before us that Miller was not diligent in searching

5 for her whereabouts. As such, under guiding precedent, we cannot conclude that there

6 was a violation of Mabel Wilson’s due process. An absence of jurisdiction is thus not

7 apparent from the face of the 1948 judgment, so the judgment was valid with respect

8 to Plaintiffs’ predecessors-in-interest. Plaintiffs thus fail to carry their burden in

9 response to Defendant’s motion for summary judgment, eliminating their claim to

10 title in the mineral interests presently at issue.

11 {44} Further underlying that conclusion is the importance we must accord to finality

12 in the context of court judgments. The disposition of a controversy before a court has

13 far reaching consequences beyond the parties instantly affected. Quiet title judgments,

14 in particular, contribute to the efficient keeping of land ownership records, and as the

15 Landmen’s Association amicus brief stated, are “the bedrock of the thousands of land

16 and mineral transactions which take place each year and which involve every type of

17 land transaction from a couple buying their first home to an oil and gas company

18 spending millions of dollars to acquire leasehold acreage.” In fact, it is common
32

1 practice for landmen and title examiners to rely upon county records and regularly

2 entered judgments where a quiet title decree establishes the chain of title. Such quiet

3 title judgments provide the certainty needed to ensure that one is the record owner of

4 property in New Mexico to the exclusion of others.

5 {45} This Court has said that “[j]udicial decisions, affecting title to real estate

6 presumptively acquired in reliance upon such decisions, should not be disturbed or

7 departed from except for the most cogent reasons, certainly not because of doubts as

8 to their soundness.” Duncan v. Brown, 1914-NMSC-013, ¶ 9, 18 N.M. 579, 139 P.

9 140; see also Bogle Farms v Baca, 1996-NMSC-051, ¶ 26, 122 N.M. 422, 925 P.2d

10 1184. That reasoning still rings true in present times, and is in part protected by the

11 showing of proof needed in order to establish a valid collateral attack upon a quiet

12 title judgment. Without evidence on the face of a quiet title judgment that the district

13 court lacked jurisdiction, that judgment must be accorded finality in accordance with

14 the reliance interests created as a consequence of the quieting of the title in its owner.

15 {46} We thus conclude that the high standard for successfully mounting a collateral

16 attack on this record is insurmountable in the instant case. Because we hold that

17 Plaintiffs’ suit constitutes an improper collateral attack on the validity of the 1948

18 judgment, we need not address whether the record also supports a finding of laches,
33

1 waiver, or estoppel.

2 V. CONCLUSION

3 {47} The district court correctly found that the suit brought by T.H. McElvain, et al.,

4 constituted an improper collateral attack on the 1948 judgment quieting title in

5 Defendants’ predecessors-in-interest. Constructive service by publication of the 1948

6 proceedings satisfied the due process of Plaintiffs’ predecessors-in-interest;

7 accordingly, the 1948 quiet title judgment is not void. The judgment of the Court of

8 Appeals is reversed, and the district court’s orders quieting title to the Property in

9 Group 1 and Group 2 Defendants, and granting summary judgment in favor of said

10 Defendants, affirmed.

11 {48} IT IS SO ORDERED.

12 ______________________________

13 BARBARA J. VIGIL, Justice 

14 WE CONCUR:

15 __________________________________

16 CHARLES W. DANIELS, Chief Justice
34

1 ____________________________________

2 EDWARD L. CHÁVEZ, Justice

3 ____________________________________

4 JUDITH K. NAKAMURA, Justice

5 PETRA JIMENEZ MAES, Justice, dissenting.
35

1 MAES, Senior Justice (dissenting).

2 {49} I respectfully dissent from the majority’s opinion and adopt in full the opinion

3 of the Court of Appeals, T.H. McElvain Oil & Gas Ltd. P’ship v. Benson-Montin4 Greer Drilling Corp., 2015-NMCA-004, 340 P.3d 1277, as my dissent. I find there

5 was ample evidence and no need to speculate that the 1948 judgment was void

6 because the Millers failed to undertake a good faith effort to provide the Wilson heirs

7 sufficient notice of suit. The evidence presented shows that with minimal diligence

8 on the part of Thomas Miller, the location of Mabel Weeber (née Wilson) would have

9 been discovered. In fact, Ms. Weeber’s location may have already been known by Mr.

10 Miller. The warranty deed conveying the property to David Miller, and the warranty

11 deed granting Judson, Eva, and MabelWilson joint tenancywith right of survivorship

12 both indicated the parties were from San Diego, California. Even with this

13 information, Mr. Miller only posted notice of suit in a New Mexico newspaper and

14 the sheriff only searched San Juan County, New Mexico for the Wilsons. It is not a

15 stretch of logic to assume a diligent plaintiff would take the extra step to post notice

16 of suit in a San Diego newspaper or at least look to a resident listing in southern

17 California with the information provided on the deeds. In sum, I believe the record

18 shows the notice provided to Mabel Weeber was not constitutionally adequate, thus
36

1 making the quiet title action subject to collateral attack. The notice and the quiet title

2 action should be void as to her descendants.

3 {50} Furthermore, I must note I do not believe Mullane v. Cent. Hanover Bank &

4 Trust Co., 339 U.S. 306, 314 (1950) presents an issue related to this case. Though

5 Mullane established a heightened standard for service by publication, the New

6 Mexico notice statute from 1948 comported with Mullane and therefore we require

7 no analysis as to the retroactive effect of the case.

8 {51} As the majority states and I agree, “a plaintiff must undertake a diligent and

9 good faith effort to locate defendants and serve them personally with notice.” T. H.

10 McElvain Oil & Gas Ltd. P’ship v. Benson-Montin-Greer Drilling Corp., 2016-

11 NMSC-____, ¶ 26, ___ P.3d ___, citing Campbell v. Doherty, 1949-NMSC-030, ¶¶

12 27, 30-31, 53 N.M. 280, 206 P.2d 1145. If personal service is not possible, plaintiffs

13 have the option of alternative service, in this case service by publication. Notice by

14 publication is not available though if a plaintiff has not first made a good faith effort

15 to find the respondents in the plaintiff’s case. The requirement for good faith effort

16 can be found in the service by publication rule in effect in 1948, which stated notice

17 by publication, effectuated by the court clerk, could be made when a “due inquiry and

18 search has been made” by the plaintiff, and plaintiff has filed a sworn affidavit stating
37

1 as much. Rule 4(g) of the Rules of Civil Procedure. See NMSA 1941, § 19-101(4)(g)

2 (Vol. 2). In Mullane the U.S. Supreme Court took issue with the New York notice

3 by publication statute, which did not require naming of each defendant in the pending

4 case, “[t]hus the only notice required, and the only one given, was by newspaper

5 publication setting forth merely the name and address of the trust company, the name

6 and the date of establishment of the common trust fund, and a list of all participating

7 estates, trusts or funds.” Mullane, 339 U.S. at 310. The company made notice this

8 way despite having knowledge of the names and addresses of every person “who

9 would be entitled to share in the principal” of the trust if it were to become

10 distributable. Id. The Court found the trust company should have served all parties

11 by mail. “Where the names and post office addresses of those affected by a

12 proceeding are at hand, the reasons disappear for resort to means less likely than the

13 mails to apprise them of its pendency.” Id. at 318. In addition, the Court also found

14 the New York statute violated the due process clause of the Fourteenth Amendment

15 because the notice rule was not “reasonably calculated to reach those who could

16 easily be informed by other means at hand.” Id. at 319. 

17 {52} In contrast, the New Mexico 1948 rule required notice by publication to

18 include “the names of the plaintiff and defendant to the cause, or if there is more than
38

1 one defendant to the cause the notice shall contain the name of said plaintiff and the

2 name of the first of said defendants,” which on its face appears to comport with the

3 Mullane ruling. NMSA 1941, § 19-101(4)(g) (Vol. 2). Furthermore, as stated earlier,

4 this type of notice is only available after the plaintiff has sworn in a statement the

5 plaintiff was unable to find the respondent by other means. Presently, there is no

6 conflict between the New Mexico statute and the findings in Mullane, as it appears

7 New Mexico was ahead of the curve in preserving due process rights through their

8 notice statute.

9 

10 PETRA JIMENEZ MAES, Justice