Coffin v. Bell , 22 Nev. 169 ( 1894 )

On December 14, 1892, the defendant Bell commenced an action in the district court of Ormsby county against Mrs. C. R. Goddard to recover a money judgment upon an account. At the same time he issued an attachment, which was duly levied upon the property in dispute in this action, a piece of real estate in Carson City.

In Bell v. Goddard summons was issued, and served on the defendant in the state of California, but no affidavit or order for the publication of summons was made. January 28, 1893, upon this service, judgment by default was entered, as prayed in the complaint, execution was issued, and the property sold thereunder by the defendant Kinney, as sheriff of said county, to defendant Bell. July 19, 1893, without vacating that judgment, or withdrawing the summons from the files, Bell made an affidavit for publication of the summons, in which he stated that the summons had been issued December 14, 1892. On the same day an order was made accordingly, in which it was stated that, "it further appearing that a summons has been duly issued out of said court in this action, * * * it is ordered that the service of the summons in this action be made upon the defendant, Mrs. C. R. Goddard, by publication," etc. July 21, 1893, what is called an "alias summons" was issued, which was a copy of the first, except that the first said nothing about the costs, while the alias stated that the action was also brought to recover costs of suit, and notified her that, if she failed to answer the complaint, the plaintiff would also take judgment against her for his costs of suit. The alias summons was served upon her in the state of California, and on October 21, 1893, judgment was again entered against her by default, and the property again sold to Bell upon execution thereunder.

February 14, 1893, the plaintiff in this action purchased the property from Mrs. Goddard, and June 30, 1893, began this action to quiet his title thereto as against the first judgment and sale, and to restrain the sheriff from executing any deed to Bell. In their answer herein the defendants admitted the invalidity of the first judgment, but alleged their attachment lien, and that they were then engaged in obtaining a second service of summons upon Goddard; and by supplemental answer, filed February 1, 1894, they set up the second judgment, and the sale thereunder. Judgment was rendered for the defendants for costs, and the plaintiff appeals. Where constructive service of summons is relied upon to sustain a judgment, a strict compliance with the provisions of the statute is required (Little v. Currie,5 Nev. 90; Mining Co, v. Marsano, 10 Nev. 370;Victor M. M. Co. v. Justice Court,18 Nev. 21; Galpin v. Page, 18 Wall. 350;Guaranty Trust Safe Deposit Co. v. Green CoveSprings M. R. Co., 139 U.S. 137, 11 Sup. Ct. 512); otherwise the court obtains no jurisdiction over the defendant; and the want of such jurisdiction, when permitted to be shown under the rules of law concerning direct and collateral attack, is fatal to the judgment.

The question here is upon the sufficiency of the second judgment entered in the action of Bell v. Goddard. It is claimed to be fatally defective, as against the present plaintiff, upon a number of grounds, but it will only be necessary to notice one or two of them.

The affidavit and order for the publication of the summons clearly referred to the original summons which had been issued long prior thereto, and which the other directed to be published. Where publication is ordered, personal service of the summons out of the state is, by section 31 of the practice act, made equivalent to publication and deposit in the post-office; and, in accordance with this, service was made upon the defendant herein in the state of California, but not of the summons ordered to be published. When it was found that the first judgment was insufficient, proper practice would doubtless have been to vacate that judgment, withdraw the summons from the file, and serve it again. The first service was a nullity, and, of course, would not prevent a good service from being subseqently made; nor did the fact that the summons had been returned and filed with the clerk prevent this course being taken. (Hancock v. Preuss, 40 Cal. 572.) This would have been correct, but in saying this we do not mean to decide that some other course might not also be held sufficient. But instead of this, two days after the order was made, a second summons, differing in some respects from the original, was issued and served upon Mrs. Goddard. We have no statute authorizing an alias summons, and in the only case found bearing upon the right to issue one without such authorization (Dupuy v. Shear, 29 Cal. 238, 240) it is said, though not decided, that an alias summons is not known to our system of practice. It is, however, unnecessary to decide the point here. It was held in the case last cited — a conclusion with which we agree — that, if more than one summons is authorized by the practice act, the second has no necessary connection with or dependence upon the first. It is based upon the complaint alone. We are of the opinion that, if it has any validity whatever, it stands the same as though it were the original summons in the case; and that brings us to the point that the summons which was served upon Mrs. Goddard, and which is relied upon to sustain the judgment, was not issued until two days after the order for publication was made.

In People v. Huber, 20 Cal. 81, it was held that a judgment founded upon the publication of a summons issued four days after the order for its publication was made was void. In answer to the contention that the order could be made in advance, to take effect when the summons was issued, the court said: "The practice act contemplates that the judge must be satisfied by affidavit of the absence of the defendant at the time when he is applied to for his order, and when it is to take effect. If an order might be procured in advance, and held four days before taking out of the summons, it might be held for a much longer time, and so that when the summons actually issues, the defendant may have returned to the state."

In Little v. Currie, 5 Nev. 90, the case of People v. Huber was cited and followed, this court there saying: "It [the order for publication] also directs a summons to issue. This is not its office. The order should be that 'service be made by the publication of the summons.' Suit is commenced before the justice by the 'filing a copy of the note,' etc., 'and the issuance of a summons thereon.' The order is a direction of extraordinary manner of service, and presupposes the existence of a summons; otherwise it is premature. * * * Statutory directions for acquiring jurisdiction by any other than personal service must be strictly pursued."

In their brief, respondents' counsel contend that these are matters that only concern Mrs. Goddard, and that she is the only one that can complain of the insufficiency of the service, or of the issuance of the alias summons; but in this, we think, they are mistaken. As a purchaser from her, the plaintiff seems to occupy, as to this property, the same position that she herself would have occupied, and to have succeeded to all her rights. (People v. Mullan,65 Cal. 396.) As her successor in interest, the action brought by him to quiet his title as against Bell's judgment, upon the ground that the court had no jurisdiction to render the judgment, is a direct, and not a collateral attack. (Choate v. Spencer, 32 P. 651; 17 Law Rep. 424; Penrose v. McKenzie, 116 Ind. 35;Morrill v. Morrill, 20 Or. 96; Buchanan v. Bilger, 64 Tex. 589.)

For the reason that the summons which was served upon Mrs. Goddard was not the summons ordered to be published, but one that issued two days after the order was made, we are of the opinion that the court never acquired jurisdiction over her. This was not a strict, nor even a substantial, compliance with the law. It follows that the judgment by default rendered against her is void, and the sale thereunder of the property in dispute in this action to defendant Bell gave him no title thereto.

Judgment and order refusing a new trial reversed, and cause remanded.