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

• Decision Date: 06 April 1925
• Docket Number: 2688.
• Citation: 234 P. 688,49 Nev. 18
• Parties: CONFER v. SECOND JUDICIAL DIST. COURT IN AND FOR WASHOE COUNTY et al.
• Court: Nevada Supreme Court

234 P. 688

49 Nev. 18

CONFER v. SECOND JUDICIAL DIST. COURT IN AND FOR WASHOE COUNTY et al.

No. 2688.

Supreme Court of Nevada

April 6, 1925

Original proceeding in mandamus by Emma E. Confer against the Second Judicial District Court of the State of Nevada, in and for County of Washoe, and George A. Bartlett, Judge of said court, to show cause why he should not be compelled to grant order directing service of summons on verified complaint. Proceeding dismissed.

Frame & Raffetto, of Reno, for petitioner.

S. W Belford, Samuel Platt, and E. F. Lunsford, all of Reno, for respondents.

SANDERS J.

An alternative writ of mandamus was issued out of this court at the instance of Emma E. Confer, directed to the respondent court and to Hon. George A. Bartlett, as judge thereof commanding him to show cause before this court at the time specified in the writ why he should not be compelled to grant an order directing that service of a summons issued upon a verified complaint on file in said respondent court be made by the publication thereof.

To obtain legal service by publication of a summons against a nonresident, it must appear by affidavit to the satisfaction of the court or judge, not only that the defendant is a nonresident, but also, either by affidavit or by a verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made. Section 84, Civil Practice Act (section 5026, Revised Laws) as amended by Statutes 1923, p. 275. This provision has been interpreted to mean that the probative facts set out in the affidavit or complaint must be sufficient to justify the court in being satisfied that the ultimate facts required by the statute exist. Victor M. & M. Co. v. Justice Court, 18 Nev. 21, 1 P. 831. That is to say, in this instance, the complaint on file must state a valid cause of action in equity to entitle the plaintiff (petitioner herein) to have summons issued and served by publication. The undisputed facts, in brief, are as follows:

In October, 1922, Nathan A. Confer commenced an action in the district court for Washoe county against Emma E. Confer for a divorce on the ground of cruelty, alleging residence in Washoe county for six months before the filing of the complaint. Process and a copy of the complaint were served personally on the defendant at her place of residence in the state of Pennsylvania. She came to Nevada, appeared, and put in an answer, in which she denied, upon her information and belief, the allegation respecting plaintiff's residence and denied all charges against her, and in her answer, by way of cross-complaint, set up the desertion of her by the plaintiff, and demanded judgment for divorce against him upon the ground of desertion, and asked for suit money and attorney's fees. The plaintiff filed an answer to the cross-allegation, and, after a full hearing upon the pleadings and evidence, the court, George A. Bartlett, judge presiding, found all the allegations of the complaint, including that of residence, to be true, and on the 18th day of July, 1923, rendered a decree of divorce in favor of the plaintiff and against the defendant. The divorce proceedings are perfectly regular and valid upon their face.

On the 30th day of October, 1924, Emma E. Confer filed a complaint in the same court against Nathan A. Confer, claiming that the court was without jurisdiction, for want of residence on the part of Nathan A. Confer, to render the decree of divorce, in this: That Nathan A. Confer left the marital domicile of the parties in the state of Pennsylvania and came to the city of Reno, Washoe county, Nev., for the sole purpose of obtaining a divorce, and without any intention of making that place his bona fide home and domicile, and for the purpose of inducing said district court to assume jurisdiction of his action for a divorce he falsely represented in his verified complaint that he was a bona fide resident of Washoe county, and had been for six months prior to the filing of his complaint, and to obtain a divorce he falsely testified as a witness in his own behalf upon the trial that he came to Reno, Washoe county, Nev., with the intention of making that place his bona fide home and domicile, when in truth and in fact his residence in Washoe county was merely colorable, and was assumed for the sole purpose of procuring a divorce. In this connection it is alleged that the plaintiff, on coming to Nevada, left all his personal and real property, including money in banks, intact in the state of Pennsylvania, and brought with him only such personal effects as were necessary to satisfy his immediate wants during his temporary sojourn in Nevada; that during his stay in the city of Reno he lived at a hotel in company with his married daughter, who came with him from Pennsylvania to Nevada; that the plaintiff was 78 years of age; that upon obtaining his decree of divorce he immediately returned to his home domicile and residence in Pennsylvania,...