Sherwin v. Sherwin

By the Court, Norcross, C. J.: This is an order from an appeal denying the motion of the defendant, appellant herein, to open a default and to to set aside a judgment and decree dissolving the bonds of matrimony existing between the above-named parties. The above-named respondent instituted a proceeding for divorce in the First (now Seventh) Judicial District Court in and for the County of Esmeralda on the 10th day of October, 1908. Upon the same day, he duly procured an order for the service of summons by publication, which order also directed that a copy of the complaint and summons be mailed to the defendant at her address at Pasadena. The record contains an affidavit showing that a copy of the complaint and summons was duly mailed to the defendant, but there is no showing that the summons was ever published in pursuance of the order. The service relied on and the only one which could be relied on is that made by one W. C. Austin, who made return by affidavit attached to the original summons that he was at the time of such service a citizen of the United States over the age of 18 years; that he personally served the summons on the said defendant by delivering to and leaving with the said defendant personally at the city of Pasadena, in the county of Los [323] Angeles, State of California, a copy of said summons attached to a copy of the complaint, on the 10th day of November, 1908. Subsequently, to wit, on the 21st day of December, 1908, default was entered against said defendant. Thereafter, on the 28th day of December, 1908, pursuant to said default, the matter was heard by the district court upon plaintiff’s complaint, and a decree dissolving the bonds of matrimony then existing between said plaintiff and defendant was entered in the cause. Thereafter and on the 12th day of January, 1909, the said defendant through her attorneys tendered to the clerk of the court a demurrer to the complaint therein on file, which demurrer was refused filing by said clerk upon the ground that "the case was closed.” Thereafter, and on the 29th day of January, 1909, the defendant through her attorneys filed a motion to set aside the default and decree entered in said cause on the ground that the defendant was surprised at the entering of said default and granting of said decree, inasmuch as .said order and decree were entered prior to the legal time being expired for the defendant to answer. Thereafter, and on the 6th day of February, 1909, said motion came on to be heard and was denied by the court. This appeal presents the sole question of the legal time allowed by the statutes of this state prior to the amendment of 1909, in which a defendant may appear and answer when personal service has been obtained without the state. A defendant served with summons without the state is entitled to forty days to answer after such service. If the service upon the defendant was in law complete on the 10th day of November, 1908, then the default and decree were not prematurely entered, but if, as contended by counsel for appellant, personal service without the state, in lieu of publication of summons, is not complete until six weeks after such personal service, then the defendant had in reality eighty-two days to answer after such personal service, instead of forty days. If the appellant’s contention is correct that the default [324] and decree were prematurely entered, the court erred in refusing to set aside the same on motion of counsel for defendant. (Forsyth v. Chambers, 30 Nev. 337.) Section 31 of the civil practice act (Comp. Laws, 3126) provides: "The order shall direct the publication to be made in a newspaper, to be designated by the court or the judge thereof as one most likely to give notice to the person to be served, for a period of six weeks. * * * When publication is ordered, personal service of a copy of the summons and complaint out of the state shall be equivalent to publication and deposit in the postoffice. The service of summons shall be deemed complete in cases of publication at the expiration of six weeks from the first publication, and in cases when a deposit of a copy of the summons and complaint in the postoffice is also required, at the expiration of six weeks from such deposit. ” While the provisions of section 31 of the civil practice act, supra, have not heretofore directly come before this court for construction, nevertheless the identical question was presented in the case of Pratt v. Stone, 25 Nev. 365, in construing the provisions of section 517 of the civil practice act (Comp. Laws, 3612), relating to service of summons issued by justice courts upon a defendant residing without the state; the provisions of said sections 31 and 517 being identical in their requirements. After setting out the provisions of said section 517, this court in Pratt v. Stone, supra, said: "We think it evident from the above provisions of the statute that the service is not complete until at the expiration of six weeks from the date of personal service out of the state when such service is made in lieu of publication or in lieu of publication and deposit in the postoffice when such deposit is also required.” The construction thus placed upon these provisions of our statute is in accordance with the construction placed upon similar provisions appearing in the codes of New York and California, from whence our statute is derived. (Bank v. Bank, 89 N. Y. 397; Brooklyn Trust Co. v. Bul [325] mer, 49 N. Y. 84; Tomlinson v. Van Vechten, 6 How. Prac. (N. Y.) 199; Abrahams v. Mitchell, 8 Abb. Prac. (N. Y.) 123; McBlain v. McBlain, 77 Cal. 507, 20 Pac. 61.) This, we think, is also the construction which has generally been placed upon this provision of our civil practice act by the district courts of this state. In order to revise this generally accepted construction, the last legislature amended the provision of section 31 so that said section now contains the provision: "When publication is ordered, personal service of the copy of summons and complaint, out of the state, shall be equivalent to completed service by publication and deposit in the postoffice, and the person so served shall have forty days after said service to appear and answer or demur. ” The order appealed from is reversed and the cause remanded, with directions to the trial court to enter an order setting aside the default and decree, and permitting the defendant to plead to the plaintiff’s complaint. Sweeney, J.: I concur in the judgment.