Deros v. Stern

• Decision Date: 07 April 1971
• Docket Number: No. 6319,6319
• Parties: Joanne Francis DEROS, a.k.a. Joanne Francis Kilpatrick, Appellant, v. Ray STERN, d.b.a. Tropicana Estates Apartments, Respondent.
• Court: Nevada Supreme Court

Page 648

483 P.2d 648

87 Nev. 148

Joanne Francis DEROS, a.k.a. Joanne Francis Kilpatrick, Appellant, v. Ray STERN, d.b.a. Tropicana Estates Apartments, Respondent.

No. 6319.

Supreme Court of Nevada.

April 7, 1971.

[87 Nev. 149] Singleton, Beckley, DeLanoy, Jemison & Reid, Las Vegas, for appellant.

Austin & Thorndal, Las Vegas, for respondent.

OPINION

THOMPSON, Justice.

This is an action for damages for wrongful eviction and conversion of personal property commenced by a tenant, Joanne Deros, against Wally and Grace Fomrath, the managers of Tropicana Estates Apartments, and Ray Stern, the non-resident owner thereof. Process was served upon the Fomraths, but Stern was never served. Patrick Finnegan, who had represented Stern in other matters, filed an answer and counter-claim for all defendants. He had been retained by the Fomraths to so appear, but had not been authorized by Stern to appear on his behalf. The case was tried to a jury and a verdict returned for Joanne Deros against all defendants for $15,787.98, and judgment was duly entered thereon. About one month later, Stern learned of the judgment against him and employed counsel to challenge its validity. That counsel timely filed a motion to dismiss the complaint and to set aside the judgment on the ground that the court never acquired jurisdiction over Stern. That motion was granted and the judgment was ordered set aside and the complaint dismissed as to Stern. The order was based upon the court's conclusion that Stern was not served with process and had not authorized Finnegan to appear on his behalf. Although the record discloses several incidents from which one might infer that Finnegan was clothed with authority to appear for Stern, it also contains direct evidence that he did not possess such authority, and we are bound by the district court's determination of this point. In any event, it is undisputed that Finnegan's purported representation of Stern was in good faith, even though mistaken. This appeal is from the order setting aside the judgment and dismissing the complaint as to Stern. ¹

1. A direct attack upon a domestic judgment obtained against a defendant who was not served with process, but whose unauthorized appearance was entered in the action through counsel, will be entertained if a timely and appropriate post-judgment motion is filed. Stanton-Thompson Co. v. Crane, 24 Nev. 171, 51 P. 116 (1897). ² Fairness demands that the defendant be afforded his day in court. It is equally apparent, however, that the plaintiff also in innocent and entitled to some degree of protection. She had the right to rely upon the purported authority of the attorney who appeared for the non-served defendant. The fact of his appearance should be sufficient for her and for the court, and neither should be required to look beyond the attorney to his authority. In an effort to accommodate and protect the interests of both innocent parties, this court in Stanton, supra, interfered with the judgment only to the extent necessary to give the defendant his day in court. This was accomplished by preserving the lien of the judgment pending final disposition after trial on the merits.

Today, our Rule 60(b) ³ invests the court with a discretionary power to relieve a party from a final judgment 'upon such terms as are just,' and this language applies to the entire paragraph including judgments that are void. Thus, it would have been permissible for the district court in this case to have disposed of Stern's post-judgment motion in a manner similar to that utilized by the court in Stanton, supra. It did not do so, choosing instead to vacate the judgment and dismiss the complaint. Upon the record of this case this was improper since, for reasons hereafter expressed, we have concluded that Stern entered a general appearance in the action by reason of the relief requested in his post-judgment motion.

2. The consequence of requesting relief in addition to that necessary to protect the movant's contention that jurisdiction of his person was not obtained, is a general appearance. This is so whether the motion is made before judgment (Barnato v. Second Judicial Dist. Court, 76 Nev. 335, 353 P.2d 1103 (1960); Selznick v. Eighth Judicial Dist. Court, 76 Nev. 386, 355 P.2d 854 (1960); Benson v. Eighth Judicial Dist. Court, 85 Nev. 327, 454 P.2d 892 (1969)), or after judgment is entered, Doyle v. Jorgensen, 82 Nev. 196, 201, 414 P.2d 707 (1966). Accordingly, when Stern requested dismissal of the complaint in addition to the setting aside of the judgment, he appeared in the action from that point forward and waived his right to rely upon the lack of service of process and the absence of counsel's authority. Doyle v. Jorgensen, supra. Such waiver, however, is not retroactive so as to breathe life into the judgment previously entered. State ex rel. Nevada Douglass Gold Mines v. Dist. Court, 51 Nev. 206, 212, 273 P. 659 (1929); Perry v. Edmonds, 59 Nev. 60, 84 P.2d 711 (1938).

3. Stern's motion to dismiss the complaint and to set aside the judgment was not accompanied by any showing of a meritorious defense to the action. Such a showing is required when the motion is...