Sherwin v. Sherwin

On Petition for Rehearing

Per Curiam:

A rehearing of this case was granted upon petition of amici curise upon the ground that the question involved was of public interest and affected, or might seriously affect, other cases throughout the state-that had gone to judgment.

Upon the former hearing of the case, while the cdurt reached an agreement as to the disposition of the appeal, practically no agreement was reached as to the law governing the main question involved. The court, however, was agreed, at the time of the former decision in this case, that, were it not for the decision of this court in the case of Pratt v. Stone, 25 Nev. 365, construing the provisions of section 517 of the practice act of 1869 (Comp. Laws, 3612), which were, so far as the point here involved is conceived, identical with the provisions of section 31, the section under construction in this case, that the construction placed upon the section by the trial court would have been approved. The two sections referred to related to the manner of the service of summons in the justice’s court and the district court respectively.

A further consideration of the question convinces us that we ought not to apply the decision in the Pratt case, supra, to the case at bar, for the reason we think the court reached an erroneous conclusion in that case, and that such erroneous conclusion ought not to be extended to another section of the practice act, even though the language of the two sections are identical, where it appears that, to follow the Pratt decision, judgments in other cases would or might be affected, to the great injury of innocent parties. We are now convinced that for many years some of the district courts of the state have held to the view that personal service of a summons upon a defendant outside of the state in the manner set forth in the statute was equivalent to publication for the *330full period of six weeks and amounted to completed service by publication; that the time for answer was forty days from such service; and that many judgments have been entered in pursuance of this theory of the law, which we are satisfied upon further consideration is the correct construction, notwithstanding the rule applied in the Pratt case as to service of summons issued from a justice’s court.

In State v. Brown, 30 Nev. 495, we refused to apply to procedure in justices’ courts a rule of construction that had become the settled law as to procedure in district courts, because of the harshness of the rule. While there might be greater reason for not applying to justice’s courts a harsh rule which had become the settled law by repeated decisions so far as district courts were concerned, than would exist where it is sought to reverse the application of the rule, nevertheless, in this case, the proper construction of the section of the statute in question has always been a matter of some doubt and differences of opinion in the several district courts of the state. This divergence of view.led to an amendment of section 31 by the legislature of 1909, specifically declaring that: "When publication is ordered, personal service, * * * out of the state, shall be equivalent to completed service by publication and deposit in the postoffice, and the person so served shall have forty days after said service to appear and answer or demur.” (Stats. 1909, p. 76.) This amendment, we think, only made clearer what was intended by the legislature of 1869 in the original enactment of the section.

As an entirely new civil practice act went into' effect January 1, 1912, and as the provisions of the amendment of 1909 are embodied in the new act (Rev. Laws, 5027), the construction here placed on -section 31 of the old act will have the effect of removing any uncertainty as to the validity of former judgments which rest upon service of summons on defendants residing without the state, where the procedure was in accordance with the construction of section 31 here placed.

As to the question that there is no valid proof of serv*331ice of summons on the defendant, for the reason that the return fails to show that the person making the service was at the time over 21 years of age as required by our statute, a further examination of the record satisfies us that this objection is also without merit.

Two affidavits of the serving party are attached to the summons, one following the California form, which recites that the party serving was "over the age of 18 years” instead of setting out that he was over 21 years of age, as required by our statute, and the other affidavit recites the additional fact that the serving party was at the time he served the summons a constable and deputy sheriff of the county of Los Angeles, State of California, the county and state in which the service was made.

Section 28 of the old practice act (Comp. Laws, 3123) in force at the time the summons was served, provides: " 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 plaintiff’s attorney, shall be served with the summons. When the summons shall be served by the sheriff or his deputy, it shall be returned with the certificate or affidavit of the officer, of its service, and of the service of a copy of the complaint, to the office of the clerk of the county in which the action is commenced. When the summons is served by any other person, as before provided, it shall be returned to the office of the clerk of the county in which the action is commenced, with the affidavit of such person of its service, and of the service of a copy of the complaint. ”

Our attention has not been called to any decision holding for or against the authority of a sheriff or deputy, as such officer, to make service of process in a foreign state, and we shall not enter upon a consideration of that questipn. Presumptively, however, a sheriff, deputy sheriff, or'constable is a citizen of the United States and of lawful age.

The contention that the appellant waived any question *332as to the validity or sufficiency of service by appearing generally and not specially to move to set the same aside, and the question as to the right of an appeal from the order refusing to set aside the judgment, will not now be considered, for the reason that these questions are not necessary to a disposition of the case, and have been raised for the first time upon rehearing. Counsel for respondent never filed a brief or orally argued the case.

In the affidavit of counsel for defendant, in support of the motion to set aside the judgment, was the mere statement that" affiant is familiar with the defense to be interposed in this action, and he believes such defense to be good and meritorious.” No other showing appears by the record to have been made, and it cannot be said that the court erred in deeming this insufficient.

The order heretofore made upon the appeal is vacated, and the order appealed from is affirmed.