Barnato v. Second Judicial Dist. Court In and For Washoe County

• Citation: 353 P.2d 1103,76 Nev. 335
• Decision Date: 07 July 1960
• Docket Number: No. 4313,4313
• Parties: Barbara B. BARNATO, Petitioner, v. SECOND JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR THE COUNTY OF WASHOE, and Honorable Clel Georgetta, Judge thereof, Respondents.
• Court: Supreme Court of Nevada

Page 1103

353 P.2d 1103

76 Nev. 335

Barbara B. BARNATO, Petitioner, v. SECOND JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR THE COUNTY OF WASHOE, and Honorable Clel Georgetta, Judge thereof, Respondents.

No. 4313.

Supreme Court of Nevada.

July 7, 1960.

Rehearing Denied Sept. 7, 1960.

Adams, Reed & Bowen, Reno, for petitioner.

Springmeyer, Thompson & Dixon, Reno, for respondents.

McNAMEE, Chief Justice.

Petitioner seeks a writ of prohibition to prevent respondent court from proceeding in a divorce action on the ground that it has no jurisdiction over petitioner.

Michael J. Barnato commenced an action for divorce against petitioner in the respondent court. Petitioner, the defendant in the action, made the following motions in said court:

1. To dismiss the action because of lack of jurisdiction over the person of defendant.

2. To dismiss the action because of lack of sufficiency of process.

3. To dismiss the action because of insufficiency of service of process.

4. To quash the service made on her at Las Vegas, Nevada.

Respondent court granted the motion to quash on the ground that plaintiff Barnato had fraudulently enticed defendant into the state of Nevada. At the same time it denied the motions to dismiss the action, and held that the defendant by moving to dismiss the entire action had made a general appearance and had placed herself within the general jurisdiction of the court for further proceedings.

The sole question to decide is whether the motions to dismiss the action constituted a general appearance and had the effect of bringing defendant within the jurisdiction of the court.

Prior to the adoption of the Federal Rules of Civil Procedure in this state, a motion to quash service of summons was the proper method of attacking an improper service and did not constitute a general appearance. Brockbank v. Second Judicial District Court, 65 Nev. 781, 201 P.2d 299. However the rule in most jurisdictions has been that a motion to dismiss an action even when based on a ground which would warrant the granting of a motion to quash service of summons constituted a general appearance regardless of the fact that it was designated a special appearance. Clawson v. Boston Acme Mines Development Co., 72 Utah 137, 269 P. 147, 59 A.L.R. 1318; Ricks v. Wade, 97 Utah 402, 93 P.2d 479; Application of Goodrich, 51 Wyo. 463, 68 P.2d 597; Dallas v. Luster, 27 N.D. 450, 147 N.W. 95. Petitioner claims that Rule 12(b), NRCP, has changed the law in this respect and that now the objection to an improper service of summons may be made by a motion to dismiss the action or by a motion to quash the service. This rule reads in part as follows:

'(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter appearing on the face of the pleading, (2) lack of jurisdiction over the person, (3) insufficiency of process, (4) insufficiency of service of process, (5) failure to state a claim upon which relief can be granted, (6) failure to join an indispensable party. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion, except defenses numbered (2)-(4) are waived if joined with one or more defenses other than defenses (2)(4), or by further pleading after denial of such defenses. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief.'

In the federal courts a motion to dismiss the action under Rule 12(b) based on improper service of process does not constitute a general apppearance. In fact Form 19, Federal Rules of Civil Procedure, 28 U.S.C.A., expressly prescribes this method of procedure in case of defective service of process. ¹

Arizona is in accord with the federal decisions in this respect. In Onan & Sons v. Superior Court, 65 Ariz. 255, 179 P.2d 243, the Arizona Supreme Court held that Rule 12(b) constituted a departure from the practice in effect in Arizona prior to its adoption of the federal rules. It is to be noted, however, that Rule 84 of the Federal Rules of Civil Procedure was omitted from the Arizona Rules of Civil Procedure. The revisers's note with respect thereto states that Rule 84 is omitted because federal forms of pleading are available to lawyers who desire to follow them. This in effect is an implied approval of the federal forms.

The Nevada Rules of Civil Procedure contain Rule 84 but some of the forms contained in its Appendix of Forms differ materially from those in the federal Appendix of Forms. In particular, Form 19 of the Nevada...