142 P. 218 | Nev. | 1914
Lead Opinion
By the Court,
An order of the district court of the Fourth judicial district was entered setting aside the default of respondent herein, in an action wherein appellant, Alexander McVeigh Miller, was plaintiff, and respondent, Mittie Point Miller, was defendant. A decree of divorce was granted to appellant by the court below, and within six months thereafter the respondent moved to set aside
The record in this case as it is before us furnished ample grounds for many observations. We deem it unnecessary to dwell at length upon the acts or conduct of the appellant, notwithstanding the fact that they are at least circumstances tending strongly to confirm the conclusions which we have arrived at.
It is unnecessary to touch upon many of the facts and circumstances presented by the record. The respondent asserts in her affidavit that she had no notice of the pendency of a divorce action against her, other than one commenced by plaintiff herein in the State of West Virginia. In this assertion she is supported by the affidavit of Mrs. Irene Miller Chainey, daughter of appellant and respondent, and also by the affidavit of Ralph W. Chainey, at whose house she resided.
The order for substituted service contains an indorsement as having been filed November 18, 1910, by Ralph W. Thomas, as deputy clerk, and a further indorsement as follows: "This paper was put into the files by me as clerk
From this it appears that the order for publication had been withdrawn from the files and was in the possession of appellant’s attorney until September 6, 1911.
The affidavit of Alexander McVeigh Miller for an order directing service of summons by publication sets forth: " That to the best information and belief of deponent said defendant is residing at present either in the city of Boston, Mass., or in Alderson, Greenbrier County, in the State of West Virginia.”
And further states: "That a just cause of action exists herein in favor of plaintiff and against said defendant, as appears by said sworn complaint on file herein. ”
The order for substituted service as made by the presiding judge pursuant to the affidavit is as follows: "On reading and filing the foregoing affidavit and upon the papers herein, it is ordered that service of the summons and complaint herein be made upon the defendant herein by publication, and that the same be published once a week for a period of six weeks in the Las Vegas Age, a newspaper published in Las Vegas, Clark County, Nevada, and that a copy of said summons and a certified copy of said complaint be deposited in the postoffice at Las Vegas, Nevada, postpaid and addressed to said defendant at Boston, Mass., at No. 370 Arbor Row, and to Alderson, Greenbrier County,West Virginia.”
The affidavit of mailing, as made by Richard Busteed, attorney for appellant, sets forth that on the 5th day of February, 1910, ■ he deposited in the postoffice at Las Vegas a true and correct copy of the summons in the action, together with a true and correct copy of the complaint, upon which first-class postage thereon was fully prepaid by him. He further states that the envelope in which these instruments were inclosed was addressed to the respondent, Mittie Point Miller, "at Alderson, West Virginia,” and "at Arbor Way, Forest Hill, Boston, Mass.”
The date of mailing, according to this affidavit, was nine months and twelve days prior to the commencement
In appellant’s application to amend the affidavit of mailing he seeks only to change the date on which it is alleged the act of mailing took place. Had the court permitted the amendment upon the application of plaintiff, which in our judgment, based upon the entire record in this case, the court was justified in refusing, although amendments should be liberally allowed. This, however, would not cure the vital defect in the affidavit wherein it appears that, if a copy of the summons and complaint was mailed at all, it was mailed to an entirely different address from that directed by the court in its order for substituted service. By the rule as laid down by the court in the case of Victor M. & M. Co. v. Justice Court, 18 Nev. 26, 1 Pac. 831, nothing less than a full compliance with the order for substituted service will suffice to give the trial court jurisdiction.
It appears from the record in this case that Mr. Busteed, attorney for appellant, sought to have the application to amend heard by Judge Somers, while the latter was presiding in Las Vegas at the request of the regular judge,
At another place in his affidavit Attorney Busteed states that the error in the affidavit of mailing was brought about by reason of his being actively engaged in the trial and presentation of causes to the court, and that he knew that the act of mailing had taken place on the same day on which the order was made directing substituted service, and that in order to properly make out his affidavit of mailing he inquired, at the time of entering the default, of the clerk as to the date on which the order for substituted service had been entered, and that the clerk informed him that the order was entered on February 6, 1910. It must be observed, however, that his affidavit of mailing does not even conform to his statement made in this respect, for it appears in his affidavit of mailing that on the 5th day of February, 1910, he mailed the summons and complaint to respondent. This was one day prior to the date which he asserts was given to him by the clerk.
There is another significant fact disclosed by the record
The appellant in his affidavit sets forth that he kept his address from the defendant until the suit for divorce was filed, but it appears from the record that on January 31, 1910, he filed his first suit for divorce in Las Vegas against respondent, and on February 6, 1910, he filed his affidavit for order of publication of summons, and pursuant to his affidavit an order was made that summons be published and that a copy of the summons and certified copy of the complaint be forwarded to the defendant at her address in Boston, Mass., and Alderson, W. Va. This first suit was later dismissed by the trial judge because the evidence disclosed that plaintiff had not resided the required length of time in Clark County. Hence from the record it is disclosed that two separate cases were commenced wherein this appellant was plaintiff and this respondent was defendant. In each case an affidavit of mailing appears wherein it is stated that the summons and complaint in the respective
It follows that the order opening and setting aside the default, as well as the order denying appellant’s motion to amend, should be affirmed.
It is so ordered.
Concurrence Opinion
concurring:
I concur in the judgment. As said by this court in Symons-Kraussman Co. v. Reno Liquor Co., 32 Nev. 243, 107 Pac. 97, "the wide power of discretion vested in trial courts on motions of this character in furtherance of
A liberal rule prevails in permitting amendments. (Elder v. Frevert, 18 Nev. 279, 3 Pac. 237.) The original affidavit filed was clearly erroneous. If it or the proposed amendatory affidavit contained statements wilfully false, the affiant could be held responsible therefor in appropriate proceedings thereafter. Whether the court should feel justified in accepting the affidavit as conclusive of the averments therein contained is a different matter.
It seems that the order for judgment was made without a reading or examination of the affidavit of mailing; in fact, that the order was made before such affidavit had been filed. Much of the subsequent controversy might have been avoided by a little more care in this regard. If it were necessary to determine that perjury had been established in this case, I should have some hesitancy in concurring in the judgment. Proof of perjury must be clear and convincing. I think a serious question is presented as to whether the proofs are sufficient to warrant the conclusions of the trial court in this respect. In the view I take of this case, however, it is immaterial whether perjury was or was not committed in the proceedings. The defendant was not personally served with process in this case, and she had a right to move within six months after the rendition of the judgment to answer to the merits of the original action. (Rev. Laws, sec. 5084; Lang Syne M. Co. v. Ross, 20 Nev. 136, 18 Pac. 358, 19 Am. St. Rep. 337; Young v. Fink, 119 Cal. 109, 50 Pac. 1060.)
Defendant accompanied her motion to set aside with a proposed answer and other affidavits of merits. It cannot therefore be said that the order was improvidently entered.