Nahas v. Nahas

• Decision Date: 06 May 1939
• Docket Number: 3252
• Citation: 90 P.2d 223,59 Nev. 220
• Parties: NAHAS v. NAHAS
• Court: Nevada Supreme Court

90 P.2d 223

59 Nev. 220

NAHAS v. NAHAS

No. 3252

Supreme Court of Nevada

May 6, 1939

Rehearing Denied July 7, 1939.

See 92 P.2d 718.

Appeal from District Court, Second District, Washoe County; B. F Curler, Judge.

Suit for divorce by Katby Nahas against Gabriel C. Nahas. From an order setting aside a default judgment and divorce decree and permitting defendant to file an answer, plaintiff appeals.

Affirmed.

McCarran Rice & Bible, of Reno, for appellant.

M. A Diskin, of Reno, for respondent.

ORR Justice.

This is an appeal from an order of the court below setting aside a default judgment and decree of divorce, and permitting the respondent herein to file his answer.

The parties were married in New York City on January 25, 1925 and immediately thereafter went to Bierut, Syria, to reside. The parties resided at Bierut, Syria, until October, 1936, at which time appellant left for New York, and arrived on November 5, 1936. On July 28, 1937, appellant left New York for Reno, Nevada.

On September 9, 1937, a complaint was filed by appellant in the District Court of Washoe County, asking that the bonds of matrimony existing between appellant and respondent be dissolved, and on the same day summons was issued; affidavit for publication was filed, and also affidavit of mailing a copy of the complaint and summons to the husband.

On October 22, 1937, the original summons was returned and filed, showing service to have been made upon the respondent at Ehden, Republic of Lebanon, on October 5, 1937. On November 5, 1937, default of the respondent was entered, trial had, and judgment and decree of divorce entered. On May 3, 1938, notice of motion and motion by respondent to set aside the default were filed and served. The motion was finally submitted to the court for decision, on July 29, 1938, and on the same date the court entered its order setting aside the default and default judgment.

Appellant makes three assignments of error. The conclusion we have reached as to the first leaves unnecessary a consideration of the second and third.

The first assignment is that the trial court erred in its decision, ruling and holding that "personal service" as used in Section 8640, N.C.L., means "personal service" within the State of Nevada.

Section 8640, N.C.L., reads as follows: "The court may, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, and may upon like terms enlarge the time for an answer, reply, or demurrer, or demurrer to an answer or reply filed. The court may likewise, upon affidavit showing good cause therefor, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars, and may upon like terms allow an answer or reply to be made after the time limited; and may, upon such terms as may be just, and upon payment of costs, relieve a party or his legal representatives from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; and when, from any cause, the summons, and a copy of the complaint in an action have not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representatives, at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action."

If we correctly understand the position of appellant, it is this: that in enacting Section 8640 the Legislature had in mind the protection of parties who would have judgments by default taken against them without their having any knowledge whatsoever of a pending action, such as in a publication case; but by permitting service outside the state in lieu of publication, the presumption of actual knowledge would obtain, and thus remove such party from without the class intended to be protected. Section 8640 expresses no such condition. If knowledge is to be made the determining factor as to whether service is personal in the sense the word is used in Section 8640, then in a case where receipt of a copy of summons by mail was had, knowledge would be presumed; and it seems as reasonable to say that because of the actual knowledge thus obtained, personal service as contemplated by Section 8640 was had. However, it is conceded that such service is not personal service.

Authority for service outside the state is found in Section 8583, N.C.L., as amended by Statutes 1931, p. 159, c. 95, § 2, reading in part as follows: "When publication is ordered, personal service of a copy of the summons and complaint, out of the state, shall be equivalent to completed service by publication and deposit in the post office, and the person so served shall have thirty days after said service to appear and answer or demur. The service of summons shall be deemed complete in cases of publication at the expiration of four weeks from the first publication, and in cases when a deposit of a copy of the summons and complaint in the post office is also required, at the expiration of four weeks from such deposit."

This section does not declare that service outside the state shall be deemed personal service, but does declare that such service...