190 P. 977 | Nev. | 1920
By the Court,
This is an appeal from an order of the Fourth judicial district court, overruling the appellants’ demurrer to a petition for a writ of review, and from the judgment entered thereon, reversing and annulling the judgment of the justice of the peace in an action entitled H. Sutton, plaintiff, v. Kirk E. Martin, defendant.
The portion of the record containing the return made by the justice of the peace to the writ of certiorari issued by the district court shows that the action was instituted in the justice court of Elko township, Elko County, Nevada, and that summons was personally served on the defendant in White Pine County, Nevada, April 5, 1919. On April 26, 1919, a default was taken, and judgment entered against the defendant and in favor of the plaintiff. Thereafter on the same day a demurrer was received through the mail by the justice and filed. An execution was issued on the 26th day of April, 1919, and the return of the justice, as it was subsequently completed pursuant to a stipulation entered into by counsel for the parties, shows that the execution was duly levied and the judgment satisfied except as to a small portion thereof. The unsatisfied portion was waived by the judgment creditor, as appears by the
The sections of the Civil Practice Act, so far as they are applicable to the quéstion, read as follows: '
“The summons may be served by a sheriff or constable of any of the counties of this state, or by any other person of the age of tweny-one years or over, not a party to the action, and said summons must be served and returned, as provided in chapter 8 of this act, or it may be served by publication. * * * ” Section 790, Civil Practice Act, as amended, Stats. 1913, p. 360.
“The summons shall be served by the sheriff of the county where the defendant is found, or by his deputy, or by any citizen of the United States over twenty-one years of age; and, except as hereinafter provided, a copy of the complaint, certified by the clerk or the plaintifffs attorney, shall be served with the summons. * * * ” Section 80, Civil Practice Act, as amended, Stats. 1913, p. 109.
In this case the demurrer was presented and filed after the time to answer had expired, and after default and judgment had been duly entered. The judgment was rendered without any previous valid service of. summons upon the défendant, and for this reason was not merely voidable, but void. The subsequent filing of the demurrer could not therefore operate retrospectively to give life to a void judgment.
“The court may also, on such terms as may be just, and on the payment of costs, relieve a party from,,a judgment by default taken against him by his mistake, inadvertence, surprise, or excusable neglect, but the application for such relief must be made within ten days after notice of the entry of the judgment and upon an affidavit showing good cause therefor.”
“The settlement and set-off of the judgment does not supersede the certiorari. The defendant, in the small judgment, did no more than he might have been compelled to do by execution. He paid it, but this will not prevent a certiorari.”
In 24 Cyc. 767, 768, the rule is thus stated:
“It is no objection to the issuance of a writ of certiorari * * * that the judgment has been paid.”
And again in 5 R. C. L. 258:
“It sometimes occurs that the petitioner does not seek relief by certiorari until the judgment rendered against him has been satisfied, but even this will not prevent the issuing of a writ of certiorari, or supersede one already brought.”
No sound reason can be advanced why a judgment void for want of jurisdiction cannot be set aside in certiorari proceedings, solely because satisfaction of such judgment has been coerced by execution or the judgment otherwise paid.
The judgment appealed from is affirmed..