Coffin v. Bell

• Decision Date: 26 July 1894
• Docket Number: 1,401.
• Parties: COFFIN v. BELL et al.
• Court: Nevada Supreme Court

37 P. 240

22 Nev. 169

COFFIN v. BELL et al.

No. 1,401.

Supreme Court of Nevada

July 26, 1894

Appeal from district court, Ormsby county; Richard Rising, Judge.

Suit to quiet title by Trenmor Coffin against L. H. Bell and William Kinney. Judgment for defendants. Plaintiff appeals. Reversed.

On December 14, 1892, the defendant Bell commenced an action in the district court of Ormsby county against Mrs. C. R Goddard to recover a money judgment upon an account. At the same time he issued an attachment, which was duly levied upon the property in dispute in this action, a piece of real estate in Carson City. In Bell v. Goddard summons was issued and serve d on the defendant in the state of California, but no affidavit or order for the publication of summons was made. January 28, 1893, upon this service, judgment by default was entered, as prayed in the complaint, execution was issued, and the property sold thereunder by the defendant Kinney, as sheriff of said county, to defendant Bell. July 19, 1893, without vacating that judgment, or withdrawing the summons from the files, Bell made an affidavit for publication of the summons, in which he stated that the summons had been issued December 14, 1892. On the same day an order was made accordingly, in which it was stated that "it further appearing that a summons has been duly issued out of said court in this action, *** it is ordered that the service of the summons in this action be made upon the defendant, Mrs. C. R. Goddard, by publication," etc. July 21, 1893, what is called an "alias summons" was issued, which was a copy of the first, except that the first said nothing about the costs, while the alias stated that the action was also brought to recover costs of suit and notified her that, if she failed to answer the complaint, the plaintiff would also take judgment against her for his costs of suit. The alias summons was served upon her in the state of California, and on October 21, 1893, judgment was again entered against her by default, and the property again sold to Bell upon execution thereunder. February 14, 1893, the plaintiff in this action purchased the property from Mrs. Goddard, and June 30, 1893, began this action to quiet his title thereto as against the first judgment and sale, and to restrain the sheriff from executing any deed to Bell. In their answer herein the defendants admitted the invalidity of the first judgment, but alleged their attachment lien, and that they were then engaged in obtaining a second service of summons upon Goddard; and by supplemental answer, filed February 1, 1894, they set up the second judgment, and the sale thereunder. Judgment was rendered for the defendants for costs, and the plaintiff appeals.

Trenmor Coffin, in pro. per., and H. F. Bartine, for appellant.

Torreyson & Summerfield, for respondents.

BIGELOW J. (after stating the facts).

Where constructive service of summons is relied upon to sustain a judgment, a strict compliance with the provisions of the statute is required (Little v. Currie, 5 Nev. 90; Mining Co. v. Marsano, 10 Nev. 370; Victor M. & M. Co. v. Justice Court, 18 Nev. 21, 1 P. 831; Galpin v. Page, 18 Wall. 350; Guaranty Trust & Safe-Deposit Co. v. Green Cove Springs & M. R. Co., 139 U.S. 137, 11 S.Ct. 512); otherwise the court obtains no jurisdiction over the defendant; and the want of such jurisdiction, when permitted to be shown under the rules of law concerning direct and collateral attack, is fatal to the judgment. The question here is upon the sufficiency of the second judgment entered in the action of Bell v. Goddard. It is claimed to be fatally defective, as against the present plaintiff, upon a number of grounds; but it will only be necessary to notice one or two of them. The affidavit and order for the publication of the summons clearly referred to the original summons, which had been issued long prior thereto, and which the order directed to be published. Where publication is ordered, personal service of the summons out of the state is, by section 31 of the practice act, made equivalent to publication and deposit in the post office and, in accordance with this, service was made upon the defendant therein in the state of California, but not of the summons ordered to be published. When it was found that the first judgment was insufficient, proper practice would doubtless have been to vacate that judgment, withdraw the summons from the file, and serve it again. The first service was a nullity, and, of course, would not prevent a...