STIMSON v. DISTRICT COURT
Stimson v. District Court
STIMSON v. DISTRICT COURT
No. 2590
STIMSON v. DISTRICT COURT
August 6, 1923.
217 Pac. 588.
3. Divorce — Court without Jurisdiction' in Motion to Vacate Decree Filed More than Six Months after Rendition.
Under Rev. Laws, 3842, proceedings in divorce, as nearly as conveniently may be, conform to those at law., and under civil practice act, sec. 142 (Rev. Laws, 5084), providing that when summons has not been personally served on defendant the court may allow defendant at any time within six months after rendition of .-judgment to answer to the merits, the district court is without jurisdiction to entertain a motion to vacate an original decree of divorce tiled more than six months after rendition of decree.
Original application by Curtis Stimson for writ of prohibition to the District Court of the Sixth Judicial District, in and for Humboldt County, and J. A. Callahan, Judge thereof, to prohibit the vacation of a decree of divorce on motion of Lillie Stimson.
Alternative writ made permanent. Petition for rehearing denied.
Mack & Green, for Petitioner: .
Motion to vacate judgment must be filed within six months. Rev. Laws, 5084; Sweeney v. Sweeney, 42 Nev. 488.
Equity will set aside judgment where fraud is extrinsic or collateral, and not for fraud in matter on which decree was rendered. U. S. v. Throckmorton, 98 U. S. 61; Pico v. Cohn, 27 Pac. 537.
The proper remedy is by petition in equity, not motion to set judgment aside. Twigg v. James, 79 Pac. 959.
Campbell & Robins, and J. W. Weatherford, for Respondents:
The wording of our statute clearly contemplates and permits service of notice out of state. Rev. Laws, 5864; District Court Rule 10. Service on attorney is sufficient. DeVall v. DeVall, 109 Pac. 755.
There was not valid service of summons in this case and therefore six - month provision in sec. 5084, Rev. Laws, does not apply. Perry v. District Court, 42 Nev. 284.
Courts of general jurisdiction may modify or vacate their judgments during term in which they are pronounced, independently of statute. Parks v. Haynes, 152 Pac. 400.
Divorce decree may be set aside for fraud on motion. Adams v. Adams, 12 Am. Rep. 134.
By the Court,
Sanders, J.:
On May 27, 1911, Curtis Stimson filed in the district court of Humboldt County a complaint against his wife, Lillie Stimson, for divorce. Service of process was had by publication. On the 5th day of September, 1911, no answer having been filed, the defendant's default was duly entered, and on the 9th day of October, 1911, plaintiff proceeded to trial and obtained a final decree of divorce.
On the 16th day of December, 1922, Lillie Stimson filed her motion, with supporting affidavits, in said court, entitled in the cause of Stimson v. Stimson, to have the judgment of divorce vacated and asking that she be permitted to file her answer to the complaint therein, alleging the following facts, in brief, as the grounds for her motion: That the order of publication was obtained by fraud, in that at the time of making the affidavit upon which the order of publication of summons was obtained and at the time said order was obtained, Curtis Stimson, the plaintiff, could have known and did know that she (the defendant) then resided at Corvallis, in the State of Oregon, and that her postoffice address was at that place; that the affidavit of plaintiff was false and untrue and was made for the purpose of concealing the pendency of the action and obtaining a decree of divorce without her knowledge, and to conceal from the court her whereabouts, and to prevent her from making a defense to the action; that the summons was not served upon her; that she has a complete defense to the action; that she had no notice of the pendency of the proceeding- until long after the trial thereof, and that she was in ignorance of the fraud practiced upon her until within six months immediately preceding the filing of her motion; that the judgment obtained is a fraud upon her and upon the court.
Upon consideration of the moving papers, the respondent court made an order purporting to fix the 29th day of January, 1923, as the date for the hearing of said motion, and ordered that the defendant serve, or cause to be served, on plaintiff and his attorney of record in the divorce action a copy of the order and notice of motion at least ten days before the date fixed for the hearing thereof. It appears that both the plaintiff and his attorney of record in the divorce action are now nonresidents of Nevada, and that the papers were served by delivering copies thereof to said parties without the State of Nevada.
On the 29th day of January, 1923, Curtis Stimson, in response to the citation, appeared specially for the purpose of objecting to the jurisdiction of the court to vacate the judgment, and for no other purpose. On the 13th day of February, 1923, the court made an order overruling the objection to its jurisdiction, and by order gave plaintiff fifteen days in which to prepare, serve, and file answering affidavits.
On the 26th day of February, 1923, Curtis Stimson, by his attorney, petitioned this court for an alternative writ of prohibition to prohibit the respondent court from proceeding to hear and determine the motion to vacate the judgment for divorce, and prayed that, upon the return to the alternative writ, the writ be made absolute and perpetual. The matter came on for hearing on the 19th day of April, 1923, and was submitted for decision upon the demurrer to the petition and upon the return of the respondents.
U.pon consideration of the elaborate briefs, we conclude, as was intimated from the bench on argument, that the real controversy between the parties turns upon a question of practice.
Section 142 of the civil practice act (section 5084 of the Revised Laws of Nevada) provides:
" And when, from any cause, the summons and a copy of the complaint in an action have not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representatives, at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action."
If this clause of the practice act applies to a motion of the character and nature of that made by the respondent, Lillie Stimson, to vacate the original decree of divorce granted her husband nearly twelve years prior to the date of her motion, it is determinative of the jurisdiction of the respondent court and judge to hear and determine her motion. 23 Cyc. 907.
But it is strenuously insisted and argued on behalf of the respondents that where it is made to appear by motion that the judgment was obtained by the plaintiff's fraudulent and wrongful conduct in obtaining service of process, and where it is made to appear from the motion that the judgment is a fraud upon the defendant and upon the court, the court,.in furtherance of justice and the preservation of the integrity of its own process, has the right, and it is its duty, to entertain the motion to vacate the judgment, independently of the statute. In support of this contention counsel favor us with the citation of numerous authorities, and particularly the divorce cases of Scribner v. Scribner, 98 Minn. 195, 101 N. W. 163; Yorke v. Yorke, 3 N. D. 343, 55 N. W. 1095; Denton v. Denton, 41 How. Prac. (N. Y.) 221. We appreciate the fact that the judgment sought to be vacated is for divorce, with its serious consequences, personal and property. Such judgments, more than judgments of other kinds, claim timely attention from courts. But the clause of our practice act does not expressly except divorce proceedings, as do the statutes of Minnesota and North Dakota, hence the cases cited from those jurisdictions do not apply, unless we are authorized to create or read into our statute an exceptional divorce proceedings.
In Denton v. Denton, supra, it is asserted that every court of record, unless restrained by positive enactment, has the power to vacate its judgments when it is established that they were obtained by fraud. It is pointed out in the opinion that under the practice in New York courts of law are authorized, when they are unable to determine questions of fact arising on motions, to refer the disputed questions of fact to a referee to take proof, and in that way afford the parties an opportunity to ascertain the truth by the examination of the witnesses produced before such referee. But in this proceeding it is conceded that, unless prohibited, the respondent court and judge will proceed to hear and to determine the motion upon affidavits.
We do not see that a decree of divorce, not void upon its face, rests upon any other or different ground than any other judgment. The act relating to marriage and divorce provides that the proceedings, pleadings, and practice, as nearly as conveniently may be, shall conform to those at law. Section 5842, Revised Laws. The courts and text-writers make no distinction between divorce judgments and other judgments. Miller v. Miller, 37 Nev. 257, 142 Pac. 218. See State v. District Court, 38 Mont. 166, 99 Pac. 291, 35 L. R. A. (N.S.) 1098, 129 Am. St. Rep. 636, and authorities cited.
The judgment sought to be vacated not being void upon its face, and all the statutory requirements to give the court jurisdiction'having been apparently complied with, the respondent court, because of the limitation prescribed by the statute, is without jurisdiction to hear and determine the motion of Lillie Stimson to vacate the original decree of divorce.
March 10, 1924.
223 Pac. 823.
By this we do not mean to hold or to decide that Lillie Stimson is without a remedy. To decide that the statute is exclusive would in many cases result in the denial of the most obvious justice. The case of Lillie Stimson may be one of those cases. We express no opinion upon it. What we decide is that her remedy by motion is gone. Whether or not she had a remedy in equity we do not decide, but point out to her that if she has such a remedy she must assert her rights by a proceeding-in the nature of a bill in equity to impeach the original decree for fraud.
Whether the petitioner by resisting the motion appeared specially or generally is wholly immaterial, as we conclude that the respondent court is without jurisdiction to entertain the motion.
The alternative writ must be made permanent.
It is so ordered.