Nevada First National Bank v. Lamb , 51 Nev. 162 ( 1928 )

It is the contention of the petitioner herein that there cannot be two final judgments in one action; that when the first judgment was rendered and the attached property sold or its value recovered and applied on the first judgment, the entire judgment was satisfied and the action itself was dead.

Under subdivision 1 of section 5236, Rev. Laws, upon the application of the plaintiff the clerk was required to enter the default of Lamb, and to immediately enter judgment for the amount specified in the complaint. The court had nothing whatever to do with either the default or the entry of the judgment, the law having imposed that duty upon the clerk of the court, and the law contemplating that when such judgment is entered by the clerk it shall be the final judgment.

It is evidently under subdivision 3 of the same section 5236, Rev. Laws, that the court proceeded in rendering the judgment of October, 1919, and the sole authority and the sole power the court had under that provision was to render a judgment for the amount that the plaintiff was entitled to recover. The court having done so, and the judgment so rendered never having been appealed from, reversed or modified, it is the final judgment in the action.

A judgment is the final determination of the rights of the parties in the action or proceeding. Section 5238, Rev. Laws. There cannot be two final judgments in this state. Lowe v. Crown Point Mfg. Co., 2 Nev. 75; 22 Cyc. 772; Black on Judgments, vol. 1, secs. 21 and 107; Perkins v. Sierra S.M. Co., 10 Nev. 405.

Ever since the celebrated case of Pennoyer v. Neff,95 U.S. p. 565, it has been almost universally held that no judgment in personam can be rendered in an action where the service of the complaint and summons was either by publication or by personal service upon the defendant outside of the state; that to give the court jurisdiction to render a judgment at all, it would be necessary for the defendant to have property within the state and to have that property brought under the control of the court by an attachment proceeding or some equivalent act. Such proceeding then becomes an action in rem and is a proceeding against the property attached. No judgment in personam can be rendered against the defendant, nor can any rights be given the plaintiff in such action against the defendant personally. See, also, Keenan v. Keenan, 40 Nev. 355; 33 C.J. 1089; First Nat. Bank v. Rantman,77 P. 1043; Black on Judgments, secs. 229, 230, 231.

The attempt to claim that Lamb appeared in the action, or gave such an appearance as to give the court jurisdiction to render the judgment of August, 1922, cannot be sustained. Lamb could not appear in that action at that time because there was no action pending in which he could have appeared. The action died with the return of the sheriff showing the execution issued under the judgment of October, 1919, had been fully paid. State v. Justice Court, 44 Nev. 140. Conceding, for argument only, that rendition of the in rem judgment of October 17, 1919, for only a part of the bank's demand was in effect a splitting of a cause of action, and conceding similarly that the reservation of right of the bank to further proceed to collect the unpaid balance was of itself ineffective, still the objection of splitting demand is not jurisdictional, but merely affords a defendant the right to object, which objection he can waive, "and such waiver will be implied from a failure to make any objection on this ground in the trial court." 1 C.J. 1109, sec. 280, and cases cited. See, also, 34 C.J. 829 and n. 39; National Union etc. Co. v. Denver etc. Co. (Utah), 137 P. 653, 656, 657; Grain v. Aldrich, 38 Cal. 514,99 A.D. 423.

Admittedly there remained unpaid $1,764.34 on the claim set up in the complaint, after the $1,369.77 was paid and credited. Said complaint as to that unpaid balance, as the respondent views it, is the full equivalent of a new complaint filed for the same amount. Also, the collection and crediting of the $1,369.77 by the in rem proceedings may be fairly accepted as neither more nor less than a voluntary payment and credit, leaving action to proceed for unpaid balance. The in rem judgment of October 16, 1919, did not purport to be and was not a final judgment. Rev. Laws Nevada, sec. 5238; Perkins v. Sierra Co.,10 Nev. 411. It could not have been appealed from as a final judgment. It expressly reserved unto plaintiff the right to further proceed for recovery of some $1,734.34 unpaid balance of claim originally sued for, hence could not be a final judgment.10 Nev. 411. It was a mere interlocutory judgment. 33 C.J. 106. Being only in rem, it did not and could not exhaust the power of the court to later proceed in personam in the same action. 2 Black, Judgment, p. 1025, sec. 674. The complaint being regularly on file, an alias summons could be issued thereon (Rev. Laws of Nevada, sec. 5017, as amended Stats. 1921, p. 88) any time within a year, or defendant Lamb could, with or without any summons, enter his appearance (Rev. Laws of Nevada, sec. 5034) just as he did do by the stipulation made and filed by him prior to the August 3, 1922, judgment now under attack, and by which stipulation the respondent contends he waived any objection to the court proceeding, and submitted himself to the jurisdiction of the court for the purpose of proceeding with respect to such unpaid balance, and that by such stipulation Lamb expressly recognized and admitted that the action was then pending and undetermined with respect to said unpaid balance. Such voluntary appearance undoubtedly waived issue and service of summons. Rev. Laws of Nevada, sec. 5034.

Lamb had a plain, speedy and adequate remedy by appeal, also by motion. Admittedly, respondent court had the jurisdiction and power to hear and determine the bank's motion to be substituted for Lamb as party plaintiff in the Lamb v. Kirchen case. Rev. Laws of Nevada, sec. 5684; Chapman v. Justice Court, 29 Nev. 154- 158, 86 P. 552-554; Nevada Central etc. Co. v. Dist. Court,21 Nev. 409, 32 P. 673; 11 C.J. 117, and cases cited; Rev. Laws of Nevada, sec. 5325.

Lamb had a plain, speedy and adequate remedy by motion to vacate the judgment of August 3, 1922, within six months after rendition thereof. Rule 45 of the Rules of Practice of the District Court. The revised Laws of Nevada, sec. 5684, providing that the writ may issue where there is no appeal, nor any plain, speedy or adequate remedy, does not mean that a party who has the right of appeal, or who has a plain, speedy and adequate remedy by motion, can deliberately allow the time for invoking those remedies to elapse and then come to this court by certiorari and say that he has no plain, speedy or adequate remedy by motion or by appeal.

OPINION This is an original proceeding in certiorari. We do not deem it necessary to detail other facts than those necessary to determine the jurisdictional question raised.

The facts, so far as material, are these: In 1919, the plaintiff brought suit against the defendant upon two certain promissory notes to recover the sum of $2,993.63, interest, attorney's fees, and costs, in the district court of Nye County. An order of service by publication of summons was made upon affidavit duly filed. Thereafter personal service was had upon the defendant in New York City, and certain money on deposit was attached. The defendant having failed to appear within the time designated, judgment was rendered against him in the amount attached, wherein the court ordered:

"And it is further ordered and adjudged that this judgment be entered without prejudice, and expressly saving and reserving any and all rights of plaintiff to further proceed against said defendant for the enforcement of payment of any balance claimed to be due by plaintiff from said defendant."

Thereafter, and on November 21, 1921, a stipulation between the parties signed by the defendant personally, was filed in the case, wherein it was agreed that certain money had been attached in said action, and stipulating that the money so attached be applied to the payment of certain claims against the money so attached by various persons. It was further stipulated that plaintiff should defer further proceedings in the action for the period of three months.

On August 3, 1922, the court, after reciting the stipulation above mentioned as an appearance by the defendant, and other matters, entered judgment in favor of the plaintiff and against the defendant for the balance alleged to be due the plaintiff.

On December 6, 1927, the defendant appeared by counsel, after due notice to the plaintiff, and moved to set aside said last-named judgment, on the ground that the court was without jurisdiction to make it. Thereafter, and on December 19, 1927, the court entered an order denying the motion.

It is the contention of counsel for petitioner that the first judgment rendered in the case was a final judgment, and, being such, the court had no jurisdiction to render a further judgment.

In support of the contention made, our attention is called to section 5236, Rev. Laws (Stats. 1913, p. 110), and section 5238, Rev. Laws, pertaining to final judgment.

1. It is a well-known general rule that there can be but one final judgment in a case; hence it is necessary that we determine if the judgment of 1919 was a final judgment. We do not think it was. As we have pointed out, the action was instituted to recover judgment in the sum of $2,993.63, costs, etc. The issue tendered by the complaint was whether or not the defendant was indebted to the plaintiff as alleged in the complaint and the plaintiff was entitled to have that allegation determined if he could acquire jurisdiction over the defendant by personal service upon him within the state or by his appearance in the case.

It is clear that the main purpose of the action was to recover a personal judgment for the full amount demanded in the prayer of the complaint and in the summons.

This court, in Perkins v. Sierra Nev. S.M. Co., 10 Nev. 411, very clearly set forth what constitutes a final judgment, wherein it says:

"A judgment or decree is final that disposes of the issues presented in the case, determines the cost, and leaves nothing for the future consideration of the court. When no further action of the court is required in order to determine the rights of the parties in the action, it is final; when the cause is retained for further action it is interlocutory" — citing cases.

2. The instant case comes squarely within that statement. The so-called judgment did not purport to dispose of the issue tendered by the complaint as to the full amount alleged to be due, and in the so-called judgment the court retained the cause for further consideration; hence the judgment rendered is merely interlocutory.

3. The attachment proceeding was a mere ancillary remedy. Levy v. Elliott, 14 Nev. 435. In Atkins v. Swope,38 Ark. 528-536, it is said:

"An attachment has no bearing whatever upon the merits of a suit. It is only ancillary to secure the fruits of any judgment to be obtained."

"Attachment proceedings are incidental and provisional" and "form no part of the pleadings." Jordan v. Frank, 1 N.D. 206,46 N.W. 171.

In Allender v. Fritts, 24 Cal. 447, it is said:

"The attachment is merely a proceeding ancillary to the action, by which a party is enabled to acquire a lien for the security of his demand. * * *"

In Miller v. Dixon, 2 Kan. App. 445, 42 P. 1014, it is held:

"The attachment proceeding being ancillary to main action, any order made with reference to the attached property does not affect the progress of the case upon merits."

See, also, 6 C.J. 31.

Pursuant to statute, alias summons may be issued toties quoties, until due service shall be made. Had the defendant come into the state after the attachment proceedings had been had, if the original summons were still in the hands of the officer, he might have made service thereof, and, if it were not, alias summons might have been issued and served, and jurisdiction would have been thereby acquired over the defendant such as would give the court jurisdiction to enter a personal judgment against him. This being done, the only question for the court to determine is whether the stipulation signed by the defendant was such as to constitute an appearance in the case by the defendant.

The stipulation in question, after reciting the attachment of certain money "and that said action is still pending and undetermined," provides how the money so attached shall be applied, and concludes with the following sentence:

"In consideration of which the plaintiff herein agrees to defer further proceedings in this action against the said defendant, W.C. Lamb, for the period of three months from date."

4. There can be but one conclusion as to the intention of the defendant in the case. He stipulates the present pendency of the action, the disposition of the money, and in consideration of this he is given three months' stay in the action. So far as appears, he was at the time within the jurisdiction of the court. If the court did not have nor could not acquire jurisdiction over him, no advantage could accrue in obtaining the three months' stay. It was a provision evidently sought by him and granted as a favor.

In the circumstances of the case, we think it clear that his appearance by stipulation served to give the court jurisdiction to enter the judgment thereafter entered; hence it must follow that these proceedings must be dismissed, and it is so ordered.

ON PETITION FOR REHEARING April 2, 1929.