Lauer v. Eighth Judicial District Court in and for Clark County

• Decision Date: 09 September 1943
• Docket Number: 3388.
• Citation: 140 P.2d 953,62 Nev. 78
• Parties: LAUER et al. v. EIGHTH JUDICIAL DISTRICT COURT IN AND FOR CLARK COUNTY et al.
• Court: Nevada Supreme Court

140 P.2d 953

62 Nev. 78

LAUER et al. v. EIGHTH JUDICIAL DISTRICT COURT IN AND FOR CLARK COUNTY et al.

No. 3388.

Supreme Court of Nevada

September 9, 1943

Original proceeding in prohibition by Theodore A. Lauer and others, as executors of the last will of Edward E. B. Adams, deceased against the Eighth Judicial District Court of the State of Nevada in and for the County of Clark, and the Honorable George E. Marshall, the Presiding Judge thereof, to restrain respondents from taking any further proceedings in a divorce action in which petitioners' decedent was defendant.

Alternative writ made absolute.

Thatcher & Woodburn and William J. Forman, all of Reno, and McNamee & McNamee, of Las Vegas, for petitioners.

Chas Lee Horsey, of Las Vegas, and Austin Sherman, of Los Angeles Cal., for respondents.

TABER Justice.

December 28, 1938, in the eighth judicial district court, Clark county, Elizabeth C. Adams commenced suit for divorce against Edward E. B. Adams, on the ground of extreme cruelty. On the same day an answer to the complaint was filed on behalf of the defendant, and on the following day the case was tried and a decree of divorce rendered and entered in favor of plaintiff.

August 23, 1941, defendant died testate in the state of New York, leaving a large estate therein, and on September 9, 1941, petitioners herein were appointed and qualified as executors of his will.

May 11, 1942, plaintiff noticed a motion for an order vacating said decree of divorce on the ground that, not desiring a divorce, she had been fraudulently induced by threats of scandal to obtain one, so that in the event of her husband's death she would not be entitled, under the laws of the state of New York, to elect to take one half of his estate. See McKinney's Consolidated Laws of New York, Annotated, Book 13, Decedent Estate Law, § 18. In support of this motion she filed an affidavit setting forth alleged facts and circumstances constituting, as she contends, extrinsic fraud. In her affidavit it is stated that she first learned of the existence of said New York law in February, 1942, when so advised by her California and New York attorneys; and that her New Jersey and Nevada attorneys, respectively, first learned of said law in February and March, 1942.

July 1, 1942, the executors filed written objections to the assuming or exercising of any jurisdiction by the district court with regard to and in respect to plaintiff's notice of motion to vacate judgment. One of the grounds of objection was that the district court had lost jurisdiction in the divorce case by lapse of time after rendition and entry of judgment, since more than six months had elapsed, and said court did not expressly or otherwise retain jurisdiction; that the assuming or exercising by said court of any jurisdiction in reference to said motion would be in violation of District Court Rule XLV.

July 10, 1942, executors' jurisdictional objections were argued, and by the court overruled. The court then proceeded to hear plaintiff's motion on the merits, and documentary evidence was introduced in her behalf. The executors, who had been substituted as parties defendant, did not offer any testimony or evidence. The motion was argued, and on August 4, 1942, the court vacated the decree of divorce. August 13, 1942, the executors served and filed notice of intention to move for a new trial.

August 14, 1942, the executors noticed a motion for an order granting a rehearing of plaintiff's motion to vacate and set aside said decree. The grounds for this motion were, in part, "that defendant's executors, through mistake, inadvertence, surprise and excusable neglect, were prevented from presenting a full and adequate defense on the merits to the said motion, and upon the ground that defendant's executors have a full, complete and meritorious defense to said motion on the merits thereof, and upon the further ground that the above named Court was without jurisdiction to make and enter said order vacating the decree of divorce in the above entitled action ***". The supporting affidavits showed, among other things, that one member of the Las Vegas firm which had been handling the executors' case in conjunction with eastern attorneys, was suddenly called into the military service; that the only other member of said firm was not familiar with the case, nor advised concerning the correspondence which had taken place between his partner and the eastern attorneys; and that by reason of the foregoing, and of other facts and circumstances not necessary to be detailed here, the executors were prevented from presenting a full and adequate defense on the merits to plaintiff's motion to vacate the decree of divorce. The executors also presented alleged facts purporting to show that they had a meritorious defense to said motion.

The motion for a new trial and the motion for rehearing came on to be heard August 28, 1942, and on October 2, 1942, the motion for a new trial was denied, but the motion for a rehearing was granted. In granting the rehearing the court did not expressly rule again on the jurisdictional objections. In his written decision granting the rehearing the district judge said, "the Court is satisfied that the defendants could have introduced evidence in opposition to the affidavit of Elizabeth C. Adams, and that the best interests of justice will be subserved by permitting the substituted defendants to appear and present such evidence as they may have going to the merits of the case."

On January 22, 1943, the executors, in the present proceeding, applied for a writ of prohibition asking that the district court be forever restrained from taking any further proceedings in said divorce action respecting the decree of December 29, 1942. Petitioners base their application upon the ground that the district court has no jurisdiction over either the subject matter mentioned in plaintiff's notice of motion to vacate the divorce decree, or of the executors in that proceeding, for the following reasons: "(1) Said notice of motion was not given within six months after the time when said judgment and decree of divorce was rendered in said action No. 8971, and said judgment and decree of divorce contained no reservation of jurisdiction whatsoever, and that for said Eighth Judicial District Court of the State of Nevada, in and for the County of Clark to assume jurisdiction over said proceeding would be in violation of Rule XLV of Rules of the District Court of the State of Nevada; (2) The facts set forth in affidavits served with said notice or any facts set forth in any affidavits or proof made upon the motion for rehearing of said motion are wholly insufficient to constitute a ground for setting aside said judgment and decree of divorce rendered in said district court on the 29th day of December, 1938."

The main question in this proceeding is whether the lower court, in setting aside the divorce decree, acted without or in excess of its jurisdiction. There are cases in which a district court may set aside its judgment in a separate action commenced more than six months after the judgment was rendered; but the question confronting us here is whether the lower court was within its jurisdiction in setting aside the divorce decree on motion in the original action. The practice in proceedings and actions to vacate judgments is in many respects so conflicting in the different states that few rules can be laid down as universally applicable. Freeman on Judgments, 5th Ed., Vol. 1, p. 376. It is important, therefore, that in this case we concern ourselves with the practice in our own state.

In the early days of Nevada when there were terms of the district courts it was held, in accordance with the universal rule, that during the term in which a judgment was rendered the court had complete control of it, and upon a proper showing could unquestionably set it aside. Ballard v. Purcell, 1 Nev. 342, 344. It was also held, with some exceptions, that a judgment could not be set aside or substantially modified by such courts after the term at which it was rendered. Daniels v. Daniels, 12 Nev. 118, at page 121; Sweeney v. Sweeney, 42 Nev. 431, at page 438, 179 P. 638.

Terms of the district courts were abolished in 1885, but in 1887 District Court Rule XLV was adopted, which, in its present form, reads: "No judgment, order, or other judicial act or proceeding, shall be vacated, amended, modified, or corrected by the court or judge rendering, making, or ordering the same, unless the party desiring such vacation, amendment, modification, or correction shall give notice to the adverse party of a motion therefor, within six months after such judgment was rendered, order made, or action or proceeding taken." This court rule was adopted to take the place of the former rule requiring motions to vacate judgments to be noticed during the terms at which they were rendered. See In re Ralph's Estate, 49 Ariz. 391, 67 P.2d 230; and cf. Becker v. Loebs Ins. Agency Co., 304 Ill.App. 575, 26 N.E.2d 653.

By virtue of District Court Rule XLV judgments, which formerly could not be set aside by a district court after the expiration of the terms at which they were rendered, cannot now be set aside by motion noticed more than six months after they are rendered. The court rule fixes a definite time limit within which judgments may be so vacated or substantially altered. Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95, 67 A.L.R. 824; Crowell v. Second Judicial District Court, 54 Nev. 400, 19 P.2d 635.

Rule XLV does not apply to a judgment void on its face, but it is not contended that such a judgment is under consideration here; the judgment roll is, in all respects, regular on its face. Nor does said rule apply to separate or...