Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
P. E. Keeler, for Appellant.
Bartlett & Thatcher, for Respondents.
By the Court, Talbot, C. J.:
This is an appeal from a final judgment, and presents the sole question of alleged error in the denial of appellant's motion to quash and set aside the service of summons made upon the appellant out of the state under an order of publication based upon an affidavit, which in part is as follows:
That said W. M. Stokes, Trustee, is a necessary party defendant in this cause of action and that a cause of action exists against him, the said W. M. Stokes, Trustee, by the plaintiff, and the cause of action is that plaintiff is a lien claimant and assignee of other lien claimants against the property of the Nevada Reduction Company, a corporation, and that the defendant, W. M. Stokes, Trustee, claims to have some right, title or interest in said property, and this suit is brought to have whatever interest, if any, the said Stokes may have in and to the property of the Nevada Reduction Company to be declared subject to the claims of plaintiff.
It is urged that this affidavit did not state sufficient facts to authorize the making of the order that service of summons be made by publication.
The code provides that when the person upon whom the service is to be made resides out of the state, and that fact shall appear by affidavit, to the satisfaction of the court or judge thereof, and it shall appear, either by affidavit or by a verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made or that he is a necessary or proper party to the action, such court or judge may grant an order that the service be made by the publication of summons. (Comp. Laws, 3125; Rev. Laws, 5026.)
It has been held that the facts must be stated in the affidavit and that there must be a strict compliance with the statute. (Coffin v. Kinney, 22 Nev. 169; Victor Mill Co. v. Justice Court, 18 Nev. 22; Roy v. Whitford, 9 Nev. 370; Gordon v. District Court, 36 Nev. 1.) However, we do not think the language quoted demands the same detailed statement of the cause of action as required in a complaint under section 5038, which provides that the complaint shall contain a statement of the facts constituting the cause of action in ordinary and concise language.
The line between the statement of ultimate facts and conclusions of law in an affidavit or pleading is often a narrow one. Conclusions of law are often held sufficient, as in actions on account and the common allegation of ownership in relation to real property.
As the allegations ordinarily required in a complaint, or even less, may be sufficient for the affidavit, statements well-nigh being conclusions of law may, in some instances, suffice for the affidavit.
A more meager allegation in a complaint will support a cause of action after judgment or if no objection is made before judgment than if attacked by demurrer. The former decisions of this court should not be construed as requiring more to be stated in the affidavit than is necessary for a cause of action in a complaint, and an allegation in the nature of a conclusion of law, which is generally deemed sufficient in a pleading, should be so in the affidavit.
As under the language of the statute the provision is in the alternative that it shall appear by the affidavit or a verified complaint that a cause of action exists against the defendant in respect to whom the service is to be made or that he is a necessary or proper party to the action, there is not the same necessity for stating the facts constituting the cause of action when nothing is sought to be recovered specifically against the defendant as in this case and it is shown that he is incidentally a necessary or proper party in an action between others, as there would be if it were sought to recover directly from the defendant on whom constructive service is made instead of to have him included as ...