Stretch v. Montezuma Min. Co.

• Decision Date: 02 August 1906
• Citation: 86 P. 445,29 Nev. 163
• Parties: STRETCH v. MONTEZUMA MIN. CO.
• Court: Nevada Supreme Court

86 P. 445

29 Nev. 163

STRETCH v. MONTEZUMA MIN. CO.

Supreme Court of Nevada

August 2, 1906

Appeal from District Court, Washoe County.

Action by Richard H. Stretch against the Montezuma Mining Company. From an order denying defendant's application to open a default and permit defendant to answer, it appeals. Reversed.

Alfred Chartz, for appellant.

Boyd & Salisbury, for respondent.

TALBOT J.

On May 14, 1904, this action was commenced and garnishment levied upon moneys in a bank in Reno; but summons was not served at that time because plaintiff's attorneys were informed that no certificate of appointment of a state agent upon whom service could be made had been filed by the defendant corporation. From the affidavits which were presented on the hearing of the motion it appears that one Roeder, who was the secretary and general manager of the company, had left Boston on May 14, 1904, informing the directors that he was going to the mines at Montezuma, Nev., but that, instead of doing so he absconded, owing the company over $12,000, judgments for which and a warrant for his arrest have since been obtained in Massachusetts, and that he could not be found. One Rowley a director and general counsel for the defendant, came from Boston and appeared at the office of the plaintiff's attorneys, in Reno on July 1, 1904, and stated that he had come West for the purpose of trying to adjust the claims against the company. He offered an amount in settlement of plaintiff's demand which his counsel were unwilling to accept or recommend to their client. At that time one of the attorneys for the plaintiff gave Rowley copies of the complaint and summons, told him that the company was liable for not having the authority of a state agent on file, and requested him to have the appointment of such an agent made and filed, so that service could be obtained, or that he appear in the action and answer or waive service. He promised to have such appointment filed and to make such appearance if the president of the company in Boston were not able to settle with the plaintiff at West Seattle; but neither he nor any of the officers of the company endeavored to make this assurance good or to compromise with the plaintiff. Rowley returned to Massachusetts, and states in his affidavit that from September 15th until October, 1904, he was too ill to do any work.

Although the attorneys for both parties were informed and may have believed in July that there was no state agent on whom service could be made, those for the plaintiff ascertained later that the appointment of Alfred Chartz as such agent was, and since the previous December had been, on file with the Secretary of State, and they had him served on October 24, 1904. He mailed the copies of the complaint and summons to the Montezuma Mining Company, 373 Washington street Boston, Mass., which he believed to be the office of the defendant. After lying in the post office there for about a month, they were returned to him stamped, "Present address unknown." He then remailed them on December 12, 1904 to M. L. Roeder, 373 Washington street, that city. Some days later he received a letter from Rowley, at 638 Old South Building, Boston, inquiring about some timber lands or contracts that belonged to the defendant, and to this he replied, informing Rowley regarding the service and mailing of the copies of the summons and complaint, and the latter wired him promptly, and on December 20, 1904, to defend the suit and interpose a demurrer, and telegraph the Boston postmaster to deliver the papers to him. Rowley secured them on the next day and mailed them back to Chartz, who, before their arrival, by mistake and thinking that the suit was pending in Esmeralda county, where the company's properties are situated, forwarded a demurrer to the clerk of the court at Hawthorne. Later, and after the return of the papers from Rowley to Chartz, and before the entry of judgment, and previous to the making of an order for the taking of the testimony of the plaintiff by deposition in the state of Washington, the motion to set aside the default, and affidavits, with a copy of the proposed answer on the merits, were filed.

It is not claimed that the giving of the copies of the complaint and summons to Rowley in Reno on July 1st was a sufficient service, or authorized the entry of a default; and the attorneys for both parties understood to the contrary....