This is an action of ejectment for certain mining ground in the territory of New Mexico. Plaintiff in error claimed title by virtue of a sheriff sale in proceedings against Dye, one of the defendants in error, reinforced by certain declarations of the latter, which, it is contended, constitute an estoppel against him to assert the invalidity of the sale or claim of title thereunto. There have been two trials of the action. The first resulted in a verdict for plaintiff in error, which was reversed by the supreme court of the territory. 12 N. M. 460, 78 Pac. 533. The second trial resulted in a judgment for defendants in error, which was affirmed by the supreme court. This writ of error was then sued out.
The validity of the sale and an estoppel, based on the facts hereinafter referred to, were relied on by plaintiffs in error at the first trial, and they secured a verdict by the instructions of the court. The supreme court of the territory reversed it, adjudging the sale to be invalid on the ground that an alias attachment was not authorized by the laws of the territory. 12 N. M. 460, 78 Pac. 533. On the second appeal the court refused to review this decision, holding it to be the 'law of the case,' and not open to further review. It confined its consideration to the question of estoppel and decided the question adversely to the contention of plaintiffs in error, and affirmed the judgment against them. This writ of error brings up both questions, which we will consider in their order.
1. The statutes of the territory distinguish between original and ancillary attachments. Sections 2636 and 2721 of the Compiled Laws of New Mexico. There is no provision for an alias attachment, and it was hence concluded by the supreme court of the territory that alias attachment was not authorized, and that a judgment dependent thereon was void and could be attacked collaterally. The procedure in attachment is provided for in chapter 2 of the Compiled Laws of New Mexico, §§ 2686 to 2737, both inclusive. A summary of the applicable sections is inserted in the margin.
There is no provision for an alias attachment, and we think the implication of the statute is against it; certainly against it except upon filing a new affidavit and bond and a new publication of notice. We have seen that an affidavit and bond are required and the proceedings are that when a defendant cannot be cited and his property shall be attached, if he did not appear within the first two days of the return term of the writ the court shall order publication to be made stating the amount of the demand, that his property has been attached, and that unless he appears at the next term judgment will be rendered against him and his property (property attached, § 2703) sold to satisfy the same. In other words, the attachment must precede the publication and constitutes the ground of publication. The summons to the defendant is through his property, and does not extend beyond it. The only consequence of his default is the sale of the property attached,-not some other property or property attached subsequently to publication. The publication cannot be ordered until the execution of the writ of attachment and its return. Section 2701. And to the same effect, as we have seen, in § 2702.
It is, however, contended by plaintiffs in error that subsection 24 of § 685 prescribed the procedure of publication of summons, not §§ 2701 and 2702, and that subsection 24 provides that, upon the filing a sworn pleading or affidavit showing cause for publication, the clerk shall give notice of the pendency of the action in some newspaper published in the county where the action is pending, which notice shall contain the names of the parties to the cause, the court in which it is pending, and a statement of the general objects of the action, and shall notify the defendant that, unless he enters his appearance before the day named therein, judgment will be rendered against him by default. If this contention be true it is difficult to account for §§ 2701 and 2702, and the scheme provided for the commencement of actions by attachment. Nor do we think the contention is supported by the fact that by subsection 175 it is provided that the act 'shall not affect actions of replevin or writs of attachment, except as to the form of the action,' and the amendment subsequently made, excepting from the operation of § 2685, 'proceeding by attachment.' The amendment was made, no doubt, to put the meaning of subsection 175 beyond any controversy. Besides, subsection 179 provides that 'the former practice in law and equity shall be retained in all cases and proceedings not comprehended within the terms and intent of this code.'