Zeig v. Zeig

• Decision Date: 25 October 1948
• Docket Number: 3531.
• Citation: 198 P.2d 724,65 Nev. 464
• Parties: ZEIG v. ZEIG.
• Court: Nevada Supreme Court

198 P.2d 724

65 Nev. 464

ZEIG v. ZEIG.

No. 3531.

Supreme Court of Nevada

October 25, 1948

Appeal from District Court, Eighth District, Clark County; A. S Henderson, Judge.

Action by Eva Zeig against Joseph Zeig, wherein plaintiff was granted a divorce. From orders denying plaintiff's motion to vacate judgment and decree of divorce, and denying plaintiff's motion making executors of the estate of defendant parties, plaintiff appeals.

Orders reversed and cause remanded with orders.

Morse & Graves, of Las Vegas, for appellant.

Louis Wiener, Jr., of Las Vegas, amicus curiae.

David Zenoff, of Las Vegas, amicus curiae.

HORSEY Justice.

The appellant, Eva Zeig, by her then attorney, William G Ruymann, Esq., on the 27th day of February, 1947, in the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, filed, as plaintiff therein, a complaint for divorce from her husband, Joseph Zeig, alleging extreme cruelty (mental in character) as a ground for divorce. She alleged, further, that there were no children the issue of the marriage, that all property rights of the parties were settled December 19, 1946, by a written agreement which she alleged 'is equitable and just and should be by the court ratified and approved.' The plaintiff prayed for a decree of absolute divorce, that the court ratify and approve the property settlement agreement that her former name, Eva Slifka, be restored to her, and for general relief. Joseph Zeig, the defendant husband, by his attorneys, Earl & Earl, entered his appearance in the action by causing his answer to be filed therein, in which, in paragraph II thereof, he denied paragraph V of plaintiff's complaint, which latter was the paragraph in which the plaintiff had alleged extreme cruelty.

The case came on regularly for trial on said 27th day of February, 1947. The plaintiff testified on her own behalf and in support of each of the allegations of her complaint. Her testimony was satisfactorily corroborated as to her residence and actual corporeal presence in Clark County, Nevada, for more than six weeks immediately prior to the filing of her complaint, by witness Joseph Biggs, and the court, finding all the allegations of the complaint to be true and satisfactorily proven by the evidence, granted the plaintiff an absolute divorce, and also decreed and ordered that her former name of Eva Slifka be restored to her. The court further, in the decree, ordered, adjudged and decreed 'that that certain property settlement agreement of the parties hereto, of date, December 19th, 1946, settling their property rights, be, and the same is, hereby by the court ratified and approved and each of the parties hereto ordered to comply with each of the terms thereof'. The plaintiff had testified, in effect, in reference to the agreement that it was a fair, equitable settlement of all the property rights of herself and husband.

The record discloses, and it is undisputed, that the defendant, Joseph Zeig, died on or about March 12, 1947, which was less than two weeks after the date the divorce was granted.

On August 14, 1947, Harold M. Morse, Esq., and Madison B. Graves, Esq., were, with the consent of William G. Ruymann, Esq., substituted as attorneys for the plaintiff, Eva Zeig, in said divorce action; and on that date they caused to be filed, in said court and in said action, a paper entitled, 'Notice of Motion to set aside and vacate Judgment and Decree,' and signed by Messrs. Morse & Graves, plaintiff's then attorneys. There was filed, also, on the same date, an affidavit made and signed by Eva Slifka, formerly known as Eva Zeig, such affidavit being entitled, 'Affidavit in support of Notice of Motion to set aside and vacate Judgment and Decree.' It appears necessary, in fairness to all the parties, that this affidavit, which, together with the above mentioned notice of motion, was filed in said court and in said divorce action less than six months from the date the judgment and decree of divorce was entered and when, under District Court Rule XLV, the district court still had jurisdiction to vacate, amend, modify or correct such judgment or decree upon legal ground therefor being established, be set forth in full herein. Omitting the formal portions of the affidavit, same is as follows:

'Eva Slifka, formerly known as Eva Zeig, being first duly sworn on oath, deposes and says:

'1. That she is the plaintiff in the above entitled action.

'2. That on the 27th day of February, 1947, this Honorable Court granted to plaintiff an absolute decree of divorce from defendant, all of which appears from the records and files of said action, to which reference is hereby made and which is incorporated herein as if set forth in haec verba.

'3. That plaintiff, not desiring a divorce, had been coerced, threatened, intimidated and forced by the defendant, his agents and employees, to obtain said divorce; that said coercion, threats, intimidation and force occurred shortly after plaintiff married defendant on July 25, 1946, and continued to and including the date of the divorce, namely, February 27, 1947.

'4. That on or about December 19, 1946, a separation agreement was entered into between plaintiff and defendant, based upon representations made by defendant to plaintiff that defendant was worth between $50,000.00 and $75,000.00; that on the basis of these figures the separation agreement provided for payment to plaintiff of $22,000.00 in installments; that plaintiff received $13,500.00, and that before the balance was paid to plaintiff the defendant died, on or about the 12th day of March, 1947; that it appears defendant left an estate of approximately $400,000.00; and that plaintiff is informed and does believe and upon such information and belief alleges that as of December 19, 1946, the date the separation agreement was entered into, defendant was worth approximately $400,000.00, which information defendant and his attorneys wilfully kept from the plaintiff.

'5. That during the time plaintiff was in Nevada establishing her residence for divorce, defendant caused her to be visited and spoken to by numerous and sundry underworld characters who warned her not to leave Nevada without a decree of divorce, and threatened her with bodily harm if she did not procure her divorce.

'6. That plaintiff would not have entered into the aforementioned separation agreement, which is a part of the files of this action, had she known the true worth of defendant.

'7. That plaintiff would not have obtained a decree of divorce if she had not been threatened with bodily harm by defendant and his agents, attorneys and employees.

'8. That because of defendant's fraudulent representations said separation agreement was entered into so that in the event of defendant's demise, plaintiff would not be entitled under the laws of New York to elect to take a share of his estate.'

It may be noted that neither the said notice of motion nor the above mentioned and quoted affidavit in support thereof has been served upon the executors of the estate of Joseph Zeig, deceased.

On November 6, 1947, the law firm of Jones, Wiener & Jones filed in said court a notice of motion and a petition that Louis Wiener, Jr., be permitted to appear in the said action as amicus curiae, and to make an oral argument in said cause upon the questions of law therein involved.

On November 21, 1947, Messrs. Morse & Graves, plaintiff's attorneys, caused to be filed in said district court a 'Notice of Motion for the entry of an Order making Raymond Ochacher and Harry Etra Executors of the Estate of Joseph Zeig, parties to the above Proceeding'. This notice of motion was addressed to 'Raymond Ochacher and Harry Etra, Executors of the Estate of Joseph Zeig, deceased, and to Jones, Wiener & Jones, Esqs., and Etra & Etra, Esqs., and Earl & Earl, Esqs., Attorneys of record, your attorneys,' and was supported by the affidavit of Harold M. Morse. The affidavit of Mr. Morse, omitting the merely formal portions, is as follows:

'Harold M. Morse, being first duly sworn on oath, deposes and says:

'1. That he is one of the attorneys for the plaintiff in the above entitled action.

'2. That he has been informed and does believe, that Joseph Zeig departed this life testate in New York City, New York; that his will was duly admitted to probate on April 9, 1947, in the Surrogate's Court of the State of New York, held in and for the County of New York.

'3. That Raymond Ochacher and Harry Etra were duly appointed executors for the Estate of Joseph Zeig, deceased, and that they, and each of them, duly qualified as such and are now acting as executors of said estate.

'4. That Etra & Etra, Esqs., whose office address is 527 Fifth Avenue, Borough of Manhattan, County, City and State of New York, are the attorneys of record for said executors, and that said attorneys have employed the legal firm of Jones, Wiener & Jones of Las Vegas, Nevada, to represent the interests of said estate in the pending motion by the plaintiff in the above captioned court and cause to set aside and vacate the judgment and decree of said court made and entered on February 27, 1947.

'5. That Louis Wiener, Jr., of the law firm of Jones, Wiener & Jones, Las Vegas, Nevada, has filed herein a Notice of Motion for permission to appear and argue the motion set forth in the preceding paragraph as amicus curiae without appearing generally in said action.

'6. That upon the death of Joseph Zeig, affiant is informed and believes that all authority for Earl & Earl Esqs., of Las Vegas, Nevada, who during the life time of Joseph Zeig had appeared for him, ceased and terminated; and that therefore the executors of the estate of Joseph Zeig, deceased, above named, are...