Zimmerman v. First Judicial Dist. Court, 4118

• Decision Date: 03 December 1958
• Docket Number: No. 4118,4118
• Citation: 74 Nev. 344,332 P.2d 654
• Parties: H. A. ZIMMERMAN, Petitioner, v. FIRST JUDICIAL DISTRICT COURT of The State of Nevada and Honorable Richard R. Hanna, District Judge, Respondents.
• Court: Nevada Supreme Court

Page 654

332 P.2d 654

74 Nev. 344

H. A. ZIMMERMAN, Petitioner, v. FIRST JUDICIAL DISTRICT COURT of The State of Nevada and Honorable Richard R. Hanna, District Judge, Respondents.

No. 4118.

Supreme Court of Nevada.

Dec. 3, 1958.

Vargas, Dillon & Bartlett and Alexander A. Garroway, Reno, for petitioner.

Laxalt, Ross & Laxalt, Carson City, for respondents.

BADT, Chief Justice.

This is an original petition for a writ of prohibition to restrain the respondent court from proceeding with the trial of a case in which Peggy Thies, administratrix of the estate of Willis B. Adkison, Jr. was plaintiff and the estate of Robert W. Zimmerman, deceased, H. A. Zimmerman and the estate of Bertie A. Moore, deceased, were defendants. The action was one for damages growing out of the operation of a car, of which H. A. Zimmerman and Robert W. Zimmerman were the registered co-owners. H. A. Zimmerman was a resident of Montana and the car was being driven on the highways of the State of Nevada (as alleged in plaintiff's complaint in the district court) by Robert W. Zimmerman, 'co-owner having control of the motor vehicle.' At the time of the accident the car was being driven by Bertie A. Moore. The accident, alleged to be the result of the wrongful and negligent acts of the defendants and the intoxication of Robert W. Zimmerman, culminated in the death of Robert W. Zimmerman, Bertie A. Moore and Adkison, the death of one of Adkison's passengers and grievous injuries to two other passengers of Adkison's car. The complaint alleged 'that defendant H. A. Zimmerman had cause to believe that the said motor vehicle, of which he was a co-owner, would be operated wrongfully, negligently and with gross negligence, and the said defendant consented to the operation of said motor vehicle.' The complaint does not allege either positively or on information and belief that Robert W. Zimmerman or Bertie A. Moore was the agent of H. A. Zimmerman.

Service of summons upon H. A. Zimmerman was made personally in Montana and by service upon the acting director of the department of motor vehicles of Nevada. H. A. Zimmerman appeared specially on a motion to quash service, the motion was denied and the case set for trial, whereupon this writ was sought.

Section 14.070(1) NRS reads as follows: '1. The use and operation of a motor vehicle over the public roads, streets or highways in the State of Nevada by any person, either as principal, master, agent or servant, shall be deemed an oppointment by such operator, on behalf of himself and his principal or master, of the director of the department of motor vehicles to be his true and lawful attorney upon whom may be served all legal process in any action or proceeding against him growing out of such use or resulting in damage or loss to person or property, and the use or operation shall be a signification of his agreement that any such process against him which is so served shall be of the same legal force and...