ON PETITION FOR REHEARING July 7, 1939. 92 P.2d 718. OPINION Appellant has filed herein a petition for rehearing, wherein it is urged, among other things, that this court in its opinion laid down the rule that where personal service has not been made upon a defendant and default is taken against him, his right to have such default set aside at any time within six months is absolute. We did not intend to so decide, and were dealing with the circumstances of this particular case, rather than with the thought of establishing a general rule.
However, conceding that the opinion admits of such *Page 229 a construction, and in view of the fact that the question may arise hereafter in cases where service is made by publication and mailing, notwithstanding the 1939 amendment (chap. 154, p. 205, session laws of 1939), we deem it advisable to clarify the situation.
1-3. We are satisfied with our holding "that personal service, as used in section 8640 N.C.L. means personal service within the state." We further decide that where personal service is not made and default taken, defendant has the right at any time within six months to move the court to set aside the default. The filing and service of a notice of motion within the time, followed by a motion for relief from the default and proof that the notice and motion is seasonably given and made, constitutes a prima facie showing in favor of a defendant. If there are circumstances which would make the granting of the relief inequitable, such as a showing of laches or inexcusable neglect, of sufficient strength to create an estoppel, it becomes the duty of the plaintiff to set them up, in order that they may be taken into consideration by the court in exercising the discretion given it by section 8640 N.C.L. Bowman v. Bowman,47 Nev. 207, 217 P. 1102, quotes with approval a statement to this effect from the case of Gray v. Lawlor, 151 Cal. 352, 90 P. 691, 12 Ann. Cas. 990. For additional California authorities see: Hiltbrand v. Hiltbrand, 218 Cal. 321, 23 P.2d 277, at page 278; Palmer v. Lantz, 215 Cal. 320, 9 P.2d 821, at page 823; 14 Cal. Jur. 1031, n. 2; Cal. Jur. Ten Year Supp., vol. 7, p. 283, sec. 91; 9 Cal. Jur. 746, n. 7; Cal. Jur. Ten Year Supp., vol. 5, pp. 275, 276.
4. In this case the defendant, assuming a burden which was not his, made a showing which satisfied the trial court that he had established excusable neglect, and the court exercised its discretion in accordance therewith. We find that there was no abuse of discretion by the trial court.
5. Appellant assigns as error the entry of the order of the court on May 27, 1938, permitting respondent to *Page 230 file an affidavit of merits and a verified answer, after the six-months' period had elapsed, contending that service of a copy of these with the notice of motion was necessary to constitute a valid notice under court rule 45. This contention is without merit. The affidavit of M.A. Diskin, served and filed with the notice of motion, discloses the date service upon respondent was made and that it was made out of the state, also that the default was entered on November 5, 1937. The filing date endorsed on the notice of motion and the date of admission of service by counsel for appellant is May 3, 1938. This brought the movant within the six-months' period. The facts contained in the affidavit of M.A. Diskin made a prima facie showing. The filing of an affidavit of merits and a verified answer was not required with the notice of motion. The notice of motion stated that a verified answer would be filed, a copy of which was tendered at the time. "This was sufficient to prevent plaintiff from being mislead as to the ultimate purpose of the motion." Bowman v. Bowman, 47 Nev. 207, at page 216, 217 P. 1102, at page 1105.
In this case appellant, consistent with her theory that the service made was personal service, relied on that portion of section 8640 N.C.L., requiring a showing of mistake, inadvertence, surprise or excusable neglect, and assigned as error the finding of the court that respondent had made such a showing, failing to recognize that the burden was upon her to establish inexcusable neglect on the part of defendant. If in the opinion of the appellant the record disclosed that she had met such burden, then in order to have that matter considered by this court, such assignment should have been made.
The petition for rehearing is denied. *Page 231