Wagner v. Anderson
| Decision Date | 14 November 1946 |
| Docket Number | 3458. |
| Citation | 174 P.2d 612,63 Nev. 453 |
| Parties | WAGNER v. ANDERSON. |
| Court | Nevada Supreme Court |
Appeal from District Court, Second District, Washoe County; A. J Maestretti, Judge.
Action by M. O. Anderson against Joseph E. Wagner for assault. From an order denying motion to set aside a default judgment entered against defendant, defendant appeals.
Reversed with directions.
Virgil H. Wedge, of Reno, for appellant.
R. S Flanary, of Sparks, for respondent.
The record in this case presents an appeal from an order made and entered in the district court of Washoe County on February 1 1946, denying defendant's motion to set aside a default judgment entered against said defendant on October 15, 1945.
On September 18, 1945 plaintiff commenced an action against defendant to recover $1,348.72 as actual damages and $4,000 exemplary damages on account of the injuries inflicted upon plaintiff by defendant by an alleged assault committed on September 8, 1945.
On September 18, 1945, defendant, while an inmate of the Washoe County General Hospital at Reno, Nevada, was served with process in said action.
On October 1, 1945, no appearance having been made by defendant, his default was entered and on October 15, 1945, a judgment was given against said defendant in the amount of $5,348.72, representing $1,348.72 as actual damages and $4,000 as exemplary damages, with costs in the amount of $29.90.
Defendant on December 1, 1945, filed and served a motion to vacate and set aside the default and judgment. The motion was based upon the ground that the same resulted from mistake, surprise and excusable neglect of defendant. A verified answer was presented with the motion. The motion was supported by the affidavit of defendant, and the following statements therein contained are admitted:
'That on September 8, 1945, while in the City of Sparks, Washoe County, Nevada, the defendant was shot several times with a gun by the present plaintiff and others; that one of the bullets from said gun entered his face at the point of his chin, emerging from the right side of his throat; that one bullet entered the right side of his chest but failed to emerge from his body; that one bullet entered the left side of his chest, emerging from his back immediately below the left shoulder blade; that one bullet entered his left hand at the middle knuckle and emerged at the knuckle of the left forefinger; that on that same date and as a result of being forcibly thrown to the ground by a police officer, his right shoulder blade was shattered and broken; all of which left the defendant in a serious physical condition; that he was immediately taken to the Washoe County General Hospital at Reno, Nevada, for treatment; that soon after arrival at the hospital he was chained to a bed, thereby restraining and restricting his freedom; that while so restrained and restricted and on or about September 18, 1945, a complaint in the above-entitled case was filed against defendant and defendant was served with summons.'
And further, that due to his physical condition as the result of his gunshot and other wounds, he was unable to offer any defense and answer; that he first learned of the entering of judgment against him on October 29, 1945, and thereafter employed an attorney.
The record further shows that before the same court wherein the motion to set aside the default was pending, and about December 17, 1945, defendant was adjudged insane and by the court ordered committed to the Nevada State Hospital. Further in support of the motion it was established that prior to the hearing and on December 20, 1945, a petition for a guardian ad litem for defendant was filed in said cause. This petition was supported by an affidavit of a doctor who examined defendant on December 17, 1945, and from his examination stated that defendant was suffering from Maniac Depressive Psychosis, and was insane; that in the opinion of the doctor defendant was insane on September 8, 1945, and for some time prior thereto, and remained insane at all times from September 8, 1945, to December 19, 1945. That from September 8, 1945, to December 19, 1945, defendant was incapable of transacting ordinary business. The record contains no denial of this statement of facts. Upon the showing a guardian ad litem was appointed for defendant.
In opposing the motion plaintiff called several witnesses, among whom was another doctor. He testified that on September 16 1945, ...
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