Perry v. Edmonds

• Decision Date: 02 December 1938
• Docket Number: 3244.
• Citation: 84 P.2d 711,59 Nev. 60
• Parties: PERRY v. EDMONDS.
• Court: Nevada Supreme Court

84 P.2d 711

59 Nev. 60

PERRY v. EDMONDS.

No. 3244.

Supreme Court of Nevada

December 2, 1938

Appeal from District Court, Clark County, Eighth Judicial District Wm. E. Orr, Judge.

Action by Jennie Edmonds against B. F. Perry, in his representative capacity as administrator of the estate of C. W. Perry deceased, to recover a money judgment upon a claim alleged to be due from the estate. From an order denying defendant's motion to vacate a default and an order refusing to vacate a judgment by default, defendant appeals.

Judgment in accordance with opinion.

Noland & Noland, of Las Vegas, for appellant.

Harry H. Austin, of Las Vegas, for respondent.

COLEMAN Chief Justice.

This action was brought against a non-resident administrator of an estate, residing in the State of Kansas, to recover judgment in the sum of $3,522.18. After an order of publication was entered, service of summons was had upon the defendant, on December 3, 1937, in the State of Kansas. On January 3, 1938 the clerk of the court entered the default of the defendant. On January 4, 1938, the defendant served and filed notice of motion, supported by affidavit of merits, to vacate and set aside the default. The motion was denied, and judgment was entered in favor of the plaintiff upon the default, after which a like notice of motion to vacate and set aside the judgment, supported by affidavit of merits and tendered answer, was filed. An appeal was taken from both the order of the court denying the motion to vacate and set aside the default and from the order to vacate and set aside the judgment. There was no appeal taken from the judgment. The motion of respondent to dismiss the appeal from the order denying the motion to vacate and set aside the default must be granted, as that is not an appealable order. If there were an appeal from the judgment, it may be that pursuant to section 8887, N.C.L., we would review the order denying the motion to vacate the default.

Several errors are assigned in this matter, but we do not deem it necessary to consider any save the one to the effect that the lower court did not obtain jurisdiction to enter a judgment in the matter, since this is not a suit in rem.

In this connection, counsel for respondent concedes, as we understand his position, that the contention would be good if it were not an action in rem, but being, as he contends, an action in rem, the court obtained jurisdiction by the service of summons in Kansas.

The claim of plaintiff which is the basis of this action was filed in the matter of the estate of C. W. Perry, as provided by section 9707, N.C.L., and was disallowed by the administrator and the court. Suit was brought upon the claim, pursuant to section 9711, N.C.L., which reads: "When a claim is rejected by the executor or administrator, or the district judge, the holder shall be immediately notified by the executor or administrator, and such holder must bring suit in the proper court against the executor or administrator within thirty days after such notice, whether the claim is due or not, otherwise the claim shall be forever barred. If the holder of a claim resides out of the state he may be informed of the rejection of his claim by written notice forwarded to his postoffice address by registered mail."

Section 9717, N.C.L., reads as follows: "The effect of any judgment rendered against any executor or administrator upon any claim for money against the estate of his testator or intestate, shall only be to establish the claim in the same manner as if it had been allowed by the executor or administrator and the district judge, and the judgment shall be that the executor or administrator pay in due course of administration the amount ascertained to be due. A certified copy of the judgment shall be filed in the estate proceedings. No execution shall issue upon such judgment nor shall it create any lien upon the property of the estate or give the judgment creditor any priority of payment."

Counsel for respondent seems to be of the opinion that in view of the provision in the last quoted section to the effect that no execution shall be issued upon a judgment rendered against an executor or administrator, the assertion that the action is one in rem is well founded. He says in his brief: "In every other action in personam we may have execution on a judgment. It seems plain to us that the legislature did not regard actions on claims against an estate as actions in personam."

We do not see anything in our statute to warrant us in holding that this is an action in rem, or substantially in rem. The mere fact that the last section quoted provides that no execution shall issue certainly does not justify the assertion. The provisions authorizing the bringing of an action upon a rejected claim is to give a claimant an...