Manville v. Manville

• Decision Date: 10 December 1963
• Docket Number: No. 4637,4637
• Citation: Manville v. Manville, 387 P.2d 661, 79 Nev. 487 (Nev. 1963)
• Parties: Anita MANVILLE, Appellant, v. Thomas F. MANVILLE, Jr., Christina Manville, Pat Gaston and John Sutton, Respondents.
• Court: Nevada Supreme Court

Page 661

387 P.2d 661

79 Nev. 487

Anita MANVILLE, Appellant, v. Thomas F. MANVILLE, Jr., Christina Manville, Pat Gaston and John Sutton, Respondents.

No. 4637.

Supreme Court of Nevada.

Dec. 10, 1963.

Harry E. Claiborne, Las Vegas, for appellant.

Bradley & Drendel, Reno, for respondents.

McNAMEE, Justice.

Pursuant to NRCP 60(b) appellant filed this independent action in the court below to set aside a decree of divorce entered in her favor on September 13, 1955 against respondent Thomas F. Manville, Jr., upon the ground of fraud. The alleged fraud consisted of coercion and threats of bodily harm on the part of said respondent which forced the appellant to go to Reno, Nevada, and file a complaint for divorce in the district court there without establishing a proper residence, and that thereafter respondent fraudulently connived to have appellant's twin sister, Juanita Ingraham, impersonate appellant at the trial, thereby surmounting appellant's refusal to proceed with her action. Upon Juanita's testimony the divorce was granted. It is not denied that on September 13, 1955 appellant initiated the divorce action by signing and verifying the complaint for divorce.

Appellant learned of the impersonation on the same day the decree of divorce was granted, and accepted the benefits of the divorce by way of alimony. ¹ On February 24, 1957 she and respondent John Sutton were married, which marriage was not terminated until June 2, 1960. Subsequent to September 13, 1955 respondent Thomas F. Manville, Jr., married Christina Manville, one of the respondents, who is still his wife.

Upon these facts appearing from the complaint, the lower court granted respondent's motion to dismiss.

In so far as those elements of the alleged fraud consisting of threats of bodily harm and coercion are concerned, had appellant appeared at the trial, this claim of fraud would have been intrinsic. Calvert v. Calvert, 61 Nev. 168, 122 P.2d 426. Whether her failure to appear at the trial made this fraud extrinsic we need not decide for the reasons hereinafter stated. The fraud consisting of the failure to establish a proper residence for divorce was intrinsic. Colby v. Colby, 78 Nev. 150, 369 P.2d 1019; Confer v. Second Judicial District Court, 49 Nev. 18, 234 P. 688, 236 P. 1097. Relief from intrinsic fraud, under NRCP 60(b), must be sought not later than six months after the decree was entered.

NRCP 60(b) provides in part: 'This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.'

The purpose of this part of the rule is to afford relief upon proof of extrinsic fraud, and the said six months' limitation has no application.

The fraud consisting of Juanita's impersonation of appellant is extrinsic. Murphy v. Murphy, 65 Nev. 264, 193 P.2d 850; Chamblin v. Chamblin, 55 Nev. 146, 27 P.2d 1061. This fraud however was known to appellant on September 13, 1955, the same day the decree of divorce was granted, and she took no action to set the decree aside until June 22, 1962, when she filed this suit for relief more than six years and nine months later. ²

The statute of limitations is applicable to a proceeding to set aside a decree of divorce procured by extrinsic fraud. ³ Howard v. Howard, 69 Nev. 12, 239 P.2d 584. It is therefore unnecessary to discuss the question of laches.

When the defense of the statute of limitations appears from the complaint itself, a motion to dismiss is proper. Cf. Nevada-Douglas Consolidated C. Co. v. Berryhill, 58 Nev. 261, 75 P.2d 992. That the statute was tolled, as claimed by appellant,...