Confer v. District Court

*21 OPINION By the Court, SANDERS, J.: An alternative writ of mandamus was issued out of this court at the instance of Emma E. Confer, directed to the respondent court and to Hon. George A. Bartlett, as j udge thereof, commanding him to show cause before this court at the time specified in the writ why he should not be compelled to grant an order directing that service of a summons issued upon a verified complaint on file in said respondent court be made by the publication thereof. To obtain legal service by publication of a summons against a nonresident, it must appear by affidavit to the satisfaction of the court or judge, not only that the defendant is a nonresident, but also, either by affidavit or by a verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made. Section 84, civil practice act (section 5026, Revised Laws), as amended by Statutes 1923, p. 275. This provision has been interpreted to mean that the probative facts set out in the affidavit or complaint must be sufficient to justify the court in being satisfied that the ultimate facts required by the statute exist. Victor M. & M. Co. v. Justice Court, 18 Nev. 21, 1 P. 831. That is to say, in this instance, the complaint on file must state a valid- cause of action in equity to entitle the plaintiff (petitioner herein) to have summons issued and served by publication. The undisputed facts, in brief, are as follows: *22 In October, 1922, Nathan A. Confer commenced an action in the district court for Washoe County against Emma E. Confer for a divorce on the ground of cruelty, alleging residence in Washoe County for six months before the filing of the complaint. Process and a copy of the complaint were served personally on the defendant at her place of residence in the State of Pennsylvania. She came to Nevada, appeared, and put in an answer, in which she denied, upon her information and belief, the allegation respecting plaintiff’s residence, and denied all charges against her, and in her answer, by way of cross-complaint, set up the desertion of her by the plaintiff, and demanded judgment for divorce against him upon the ground of desertion, and asked for suit money and attorney’s fees. The plaintiff filed an answer to the cross-allegation, and, after a full hearing upon the pleadings and evidence, the court, George A. Bartlett, judge presiding, found all the allegations of the complaint, including that of residence, to be true, and on the 18th day of July, 1923, rendered a decree of divorce in favor of the plaintiff and against the defendant. The divorce proceedings are perfectly regular and valid upon their face. On the 30th day of October, 1924, Emma E. Confer filed a complaint in the same court against Nathan A. Confer, claiming that the court was without jurisdiction, for want of residence on the part of Nathan A. Confer, to render the decree of divorce, in this: That Nathan A. Confer left the marital domicile of the parties in the State of Pennsylvania and came to the city of Reno, Washoe County, Nevada, for the sole purpose of obtaining a divorce, and without any intention of making that place his bona fide home and domicile, and for the purpose of inducing said district court to assume jurisdiction of his action for a divorce he falsely represented in his verified complaint that he was a bona fide resident of Washoe County, and had been for six months prior to the filing of his complaint, and to obtain a divorce he falsely testified as a witness in his own behalf upon the trial that he came to Reno, Washoe *23 County, Nevada, with the intention of making that place his bona fide home and domicile, when in truth and in fact his residence in Wiashoe County was merely colorable, and was assumed for the sole purpose of procuring a divorce. In this connection it is alleged that the plaintiff, on coming to Nevada, left all his personal and real property, including money in banks, intact in the State of Pennsylvania, and brought with him only such personal effects as were necessary to satisfy his immediate wants during his temporary sojourn in Nevada; that during his stay in the city of Reno he lived at a hotel in company with his married daughter, who came with him from Pennsylvania to Nevada; that the plaintiff was 78 years of age; that upon obtaining his decree of divorce he immediately returned to his home domicile and residence in Pennsylvania, which he never abandoned, and had no intention of abandoning when he came to Reno for the purpose of obtaining a divorce, and where he now resides. The plaintiff further alleged that as a part of the judgment for divorce it was adjudged that there was no community property, and that by virtue thereof the plaintiff was deprived of her dower interest in property of Nathan A. Confer, of the approximate value of $100,000. The complaint alleges that by reason of the false and fraudulent representations and the perjured testimony of the plaintiff the district court Was without jurisdiction, for want of residence, to render the decree of divorce of July 18, 1923, and the plaintiff prayed judgment that said decree be vacated and annulled. Upon the filing of her complaint the plaintiff applied to the respondent court for an order that the service of the summons thereon be made by publication. The court refused to grant the order; hence this proceeding in mandamus. Nathan A. Confer may have practiced a fraud upon the law and the court, but certainly not upon Emma E. Confer. She was not deceived by the allegation of residence, neither was she an innocent party. The plaintiff alleged the required residence to give the *24 court jurisdiction of the subject matter of the action. 9 California Jurisprudence, 694. The allegation of residence was denied by the defendant (petitioner), upon her information and belief. No one, except the plaintiff, knew better than the defendant, petitioner herein, whether the allegation was true or not. The obligation devolved upon her to give the court all the information which she now shows she possessed concerning the fact of the plaintiff’s residence. Her present solicitude for the protection of the court’s jurisdiction in the divorce action comes too late. The petitioner not being an innocent party, that numerous class of cases cited by her counsel wherein innocent parties, against whom courts without jurisdiction, for want of residence, have rendered decrees of divorce, were granted relief in both direct and collateral proceedings, are not in point. It is argued on the part of petitioner that, where a judgment for divorce is obtained by fraud practiced upon the law and the court, it is the duty of the judge rendering the decree to promptly make such inquiry and finding as to the allegations of fraud as will protect and preserve the integrity of his decree, and this without reference to the relative rights of the parties. This is indeed a high-minded position to take, but, unfortunately, the fraud of which the petitioner complains was that practiced upon the court in an action to which she was a party and an actor. The power of a court of equity to grant relief from a j udgment obtained by fraud is inherent, but not every fraud committed in the course of a judicial determination will furnish ground for such relief. The acts for which a judgment or decree may be set aside or annulled have reference only to fraud which is extrinsic or collateral to the matter tried by the court, and not to fraud in the matter on which the judgment was rendered. 15 R. C. L. 762. The rule applies to a divorce action to the same extent, at least, as to any other judgment or decree. Clark v. Clark, 64 Mont. 386, 210 P. 93, and cases cited. Assuming for the sake of the argument, and the *25 argument only, as was done by the court in the case of Clark v. Clark, supra, that the allegation in the complaint for divorce respecting residence was untrue, and that the plaintiff’s testimony in support of it was false, we are confronted with the question whether the judgment for divorce should be set aside upon the sole ground that an allegation in the complaint necessary to support the judgment was proved by false testimony. We are of opinion that the fraud being in respect to the very matter on which the judgment for divorce was rendered the judgment under the rule stated cannot be set aside. Clark v. Clark, supra; Orr v. Orr, 144 P. 753, 146 P. 964. The required residence of the plaintiff in a divorce action is a jurisdictional fact, and must appear to warrant a divorce. The allegation of residence stands upon the same footing as any other allegation of fact showing the right to a divorce. Walker v. Walker, 45 Nev. 105, 198 P. 433; Blakeslee v. Blakeslee, 41 Nev. 243, 168 P. 950; Dahne v. Superior Court, 31 Cal. App. 664, 161 P. 280. The case of McKim v. District Court, 33 Nev. 44, 110 P. 4, is authority for the proposition that a question as to the sufficiency of the evidence to establish residence upon the part of the complainant in a divorce proceeding must be taken by appeal, and not by original proceeding. We think that by the plainest principles of equity the petitioner is, under all the circumstances, precluded from maintaining her action to annul the decree of divorce upon the sole ground that the allegation in the complaint necessary to support the j udgment was proved by false testimony. Her complaint does not, therefore, state a valid cause of action in equity, and for this reason we decline to compel the respondent judge to make an order directing that the summons issued upon such complaint be made by the publication thereof. The proceeding is dismissed. *26 June 18, 1925. 236 P. 1097.