Nevada First Nat. Bank of Tonopah v. Lamb
| Decision Date | 15 November 1928 |
| Docket Number | 2825. |
| Parties | NEVADA FIRST NAT. BANK OF TONOPAH v. LAMB. |
| Court | Nevada Supreme Court |
Original proceeding in certiorari by W. C. Lamb against the Nevada First National Bank of Tonopah. Proceedings dismissed.
See also, 271 P. 693.
James T. Boyd, of Reno, for appellant.
Cooke Stoddard & Hatton, of Tonopah, for respondent.
This is an original proceeding in certiorari. We do not deem it necessary to detail other facts than those necessary to determine the jurisdictional question raised.
The facts, so far as material, are these: In 1919, the plaintiff brought suit against the defendant upon two certain promissory notes to recover the sum of $2,993.63, interest attorney's fees, and costs, in the district court of Nye county. An order of service by publication of summons was made upon affidavit duly filed. Thereafter personal service was had upon the defendant in New York City, and certain money on deposit was attached. The defendant having failed to appear within the time designated, judgment was rendered against him in the amount attached, wherein the court ordered:
"And it is further ordered and adjudged that this judgment be entered without prejudice, and expressly saving and reserving any and all rights of plaintiff to further proceed against said defendant for the enforcement of payment of any balance claimed to be due by plaintiff from said defendant."
Thereafter and on November 21, 1921, a stipulation between the parties signed by the defendant personally, was filed in the case, wherein it was agreed that certain money had been attached in said action, and stipulating that the money so attached be applied to the payment of certain claims against the money so attached by various persons. It was further stipulated that plaintiff should defer further proceedings in the action for the period of three months.
On August 3, 1922, the court, after reciting the stipulation above mentioned as an appearance by the defendant, and other matters, entered judgment in favor of the plaintiff and against the defendant for the balance alleged to be due the plaintiff.
On December 6, 1927, the defendant appeared by counsel, after due notice to the plaintiff, and moved to set aside said last-named judgment, on the ground that the court was without jurisdiction to make it. Thereafter, and on December 19, 1927, the court entered an order denying the motion.
It is the contention of counsel for petitioner that the first judgment rendered in the case was a final judgment, and, being such, the court had no jurisdiction to render a further judgment.
In support of the contention made, our attention is called to section 5236, R. L. (Stats. 1913, p. 110), and section 5238, R. L. pertaining to final judgment.
It is a well-known general rule that there can be but one final judgment in a case; hence it is necessary that we determine if the judgment of 1919 was a final judgment. We do not think it was. As we have pointed out, the action was instituted to recover judgment in the sum of $2,993.63, costs, etc. The issue tendered by the complaint was whether or not the defendant was indebted to the plaintiff as alleged in the complaint and the plaintiff was entitled to have that allegation determined if he could acquire jurisdiction over the defendant by personal service upon him within the state or by his appearance in the case.
It is clear that the main purpose of the action was to recover a personal judgment for the full amount demanded in the prayer of the complaint and in the summons.
This court, in Perkins v. Sierra Nev. S. M. Co., 10 Nev. 411, very clearly set forth what constitutes a final judgment, wherein it says:
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