Brockbank v. Second Judicial Dist. Court in and for Washoe County

• Decision Date: 22 December 1948
• Docket Number: 3563.
• Citation: 201 P.2d 299,65 Nev. 781
• Parties: L. T. BROCKBANK v. SECOND JUDICIAL DISTRICT COURT IN AND FOR WASHOE COUNTY et al.
• Court: Nevada Supreme Court

201 P.2d 299

65 Nev. 781

L. T. BROCKBANK v. SECOND JUDICIAL DISTRICT COURT IN AND FOR WASHOE COUNTY et al.

No. 3563.

Supreme Court of Nevada

December 22, 1948

Original prohibition proceeding by L. T. Brockbank, Jr., relator against the Second Judicial District Court of the State of Nevada in and for the County of Washoe, Hon. A. J Maestretti, Judge in Department No. 2 thereof, and J. B LaGue, to prohibit the court or any judge thereof from determining any matter in an action by J. B. LaGue against the relator.

Writ of prohibition made permanent.

H. R. Cooke, of Reno, for relator.

M. J Scanlan and C. Lester Zahniser, both of Reno, for respondents.

EATHER Chief Justice.

The petition filed November 22, 1948 recites that the District Court is about to set down for hearing a suit against him, No. 118865, Department 2, enter a default and give a judgment clouding his title to mining claim, all without jurisdiction and in the absence of compliance with the Nevada law respecting the constructive service of summons.

Respondents' return filed December 3, 1948 does not deny intention to proceed as charged, but contends that the omission charged is not fatal to jurisdiction over the person of petitioner; that the defect was waived by a general appearance and that a plain, speedy and adequate remedy at law is open to petitioner in the ordinary course of procedure in the suit.

Petitioner, on December 7, 1948, filed a pleading in the nature of a general demurrer to the respondents' return.

Inasmuch as there is no dispute as to the facts considered controlling, and the question is a narrow one of law, our decision will be directed to a solution of the legal issue without segregating the demurrer for an express ruling.

From the petition and return we find the following situation to exist.

The action by J. B. LaGue against L. T. Brockbank, Jr. seeks to require specific performance of an alleged contract for the sale of mining claims and to order their sale and conveyance to plaintiff by defendant, or if he fails to do so, that the clerk of the court be directed to execute and deliver such a conveyance.

The complaint was verified May 18, 1948 and filed July 17, 1948. An alias summons was issued July 30, 1948 and was returned and filed August 13, 1948, with an affidavit alleging service by delivery to defendant in New York City August 10, 1948. There is no record of the original summons as, ordinarily, there should be to authorize the alias.

On August 3, 1948, an affidavit for the service of summons, verified May 5, 1948, was filed in the District Court, together with the tender and filing of an order complete except for the date in August 1948, and except for the signature of the District Judge or an attestation by the clerk that it was made by the court or any minute order directing that the order of service be granted.

On November 16, 1948, the district court heard and denied a motion by the defendant, appearing specially for that purpose only, to 'quash and set aside the alleged and pretended service of summons * * *.'

The written decision of the court on the motion indicates that there was an issue of fact as to whether process was actually served on defendant by delivering to him personally in New York a copy of the summons with a certified copy of the complaint annexed. The decision however was based on a finding that while the order for service of summons filed August 3, 1948, was not signed, there was a substantial compliance with the law, and the omission did not prevent a valid service of summons under the law relating to constructive or substituted service.

The district judge in his opinion frankly admitted that 'by the record' it was true that 'the court made no order for the publication of summons.' The decision stated, however, that 'there is a general presumption of law that those things required to be done by persons charged with an obligation to perform them are deemed to have been done.'

The decision also analyzed another controversial matter. The affidavit for the service of summons was filed August 3, 1948, but it was made and verified May 5, 1948, at a time when, contrary to its recital, no complaint was then on file and no summons was then issued or outstanding. The district court found that the affidavit was such as to require action, and action was presumed although no action was in fact taken.

Assuming (but not deciding) that some action was required, we find no basis for a conjecture as to what the nature of such action should be, favorable or otherwise.

In keeping with the theory of the district court in its decision on the motion to quash, the return of the respondent to this court sets out:

1. That a copy of the summons and complaint was actually delivered to defendant in New York (on August 10, 1948), and thereby jurisdiction over the person of defendant was acquired.

2. That defendant suffered no irreparable injury by reason of the fact that the affidavit for service and the order for service was not filed until three months lacking two days after the affidavit was made.

3. That the defendant suffered no irreparable injury by reason of the failure of the court to sign the order for service of summons.

4. That the petition in this court attacking the sufficiency of the affidavit for service of summons, is equivalent to a general demur...