3 Nev. 381 | Nev. | 1867
Opinion by
concurring.
In this case a judgment was taken against the defendant by default, from which it appeals, and the principal question is as to the regularity of the default.
The default was founded on the following. summons and service thereof, and was taken June 16th, 1866 :
“ You are hereby required to appear in an action brought against you by the above-named plaintiff, in the District Court of the First Judicial District of the State of Nevada, in and for the County of Storey, and answer the complaint filed therein within ten days (exclusive of the day of service) after the service on you of this summons, if served in said county, but within said district, within twenty days; and in all other cases, forty days; or judgment by default will be taken against you, according to the prayer of said complaint.
“ The said action is brought to recover judgment for the sum of $1,550.91, besides costs of suit, as follows: $1,500.91, as is alleged, as a balance on contract for sinking, timbering, framing, curbing and dividing the shafts of defendant, situate in Storey County, Nevada; and fifty dollars for services in repairing the puppet-heads, etc., of the whim attached to the shaft of defendant, together with legal interest on $1,500.91 from February 15th, 1865 ; all of which is more fully set forth in plaintiff’s complaint on file in my office, a copy of which is hereto attached and referred to.
“ And you are hereby notified, that if you fail to appear and answer the said complaint, the said plaintiffs will take judgment, as therein demanded, within twenty days after service hereof.”
“ Henry L. Davis, being first duly sworn, says and certifies that he is the Sheriff of the City and County of San Francisco, State of California; that he received the annexed summons on the twenty-fifth day of May, a.d. 1866, and personally served the same on the same day upon the within named defendant, the “420” Mining Company, by delivering to II. O. Howard, the Secretary of said mining company the said defendant, personally,*383 in the city and county aforesaid, a true copy of said summons, attached to a certified copy of the complaint referred to in said summons, and at the same time showing to him the said annexed original summons.”
The twenty-fifth section of the Practice Act of 1861 reads as follows:
“ The time in which the summons shall require the defendant to answer the complaint shall be as follows: First — If the defendant is served within the county in which the action is brought, ten days. Second — If the defendant is served out of the county, but in the district in which the action is brought, twenty days. Third — In all other cases, forty days.”
This summons seems in its opening sentence to have been framed in compliance with the requirements of this section, except that it reads “if served in said county but within said district,” etc., when it is evident that several words are omitted between the words “ county ” and “ but.” This portion of the sentence should properly have read “ if served in said county, or if served out of said county, but within said district,” etc. The italics show the words omitted in the summons. With this exception this part of the summons is properly framed under the Act of 1861. But the concluding part of the summons warns the defendant that if it fails to answer within twenty days after the service, default will be taken against it. The latter part of the summons is inconsistent with the first. The first part, if intelligible at all, means that if the defendant is served in Storey County, it shall have ten days only within which to answer. If served -within the First Judicial District, but outside of Storey County, (an absurd and foolish clause to put in a summons where there is only one county in the district) twenty days, and'in all other cases forty days.
Here there is an apparent contradiction between the different parts of the summons, calculated to mislead and deceive the defendant. But it is suggested that the law of 1864-5, amending the thirtieth section of the Practice Act of 1861, provides that where a corporation incorporated in California, but doing business in this State, is sued, and has no officer here upon whom service can be made, the Court or Judge before whom the action is pending may
This summons was too indefinite to admit of default being taken at the expiration of twenty days.
It has been suggested that appellant should have applied to the Court below for relief before bringing the case to this Court. It is quite possible that would have been the better course. Especially would that have been the better course if the judgment was rendered during term time, and the appellant had an opportunity to apply to the Court before the close of its term. Whether a District Court would in such a case have the authority, after the expiration of the term, to set aside the default, may be somewhat questionable. (See Shaw v. McGregor, 8 Cal. 521; Dorente v. Sullivan, 7 Cal. 279-80.)
In New York, under a code similar to ours, it has been frequently said there can be no appeal from a judgment by default. If a party does not make his defense in the Court of original jurisdiction he will not be heard in the Appellate Court for the first time, for this would be making the Appellate Court exercise the functions of a Court of original jurisdiction. Nor are we unmindful of the fact that the late Justice Brosnan, in the case of Paul et al. v.
It must be observed that in all the New York cases -to which our attention has been called there was no question about the regularity of the default. The question in each case was, whether a party would be allowed to prosecute an appeal from a judgment, decree, or order made against him in a case where he did not appear and contest the same, but suffered it to be taken without opposition, protest, or argument on his part, although regularly before the Court, and having the opportunity to contest.
The authorities on this subject are all referred to in Abbot’s New York Digest, under the head of “ Appeal.”
This is a very different case from that. Here the default was irregularly taken, and judgment is entered without proper authority. In such case it has repeatedly been held in California that an appeal is the proper remedy — at least, that it is a proper remedy. (See Stevens v. Ross, 1 Cal. 97; Parker v. Shepherd, 1 Cal. 131-2; Burt et al. v. Scranton et al., 1 Cal. 416—7; Joice v. Joice, 5 Cal. 449.) We have copied our statutory laws almost exclusively from those of California, and we look almost exclusively to that State for rulings upon matters of practice. We shall not then deny to parties the right to such a remedy by appeal, which has always been held to be the proper remedy, in such cases in California. But whilst we will allow a party to seek relief for a judgment improperly rendered upon default by appealing to this Court, we will exercise our discretion as to matters of costs.
In this case the summons left it doubtful whether defendant was bound to answer by, say the fifteenth of June or the fifth of July. If it did not think it necessary to answer by the former, it certainly should have answered by the latter period, if any defense was to be
Under these circumstances, we will reverse the judgment of the Court below, and order the costs of this appeal to abide the final result of the case. ' It is so ordered.