Appeal from Second Judicial District Court, Washoe County; John S. Orr, Judge.
James Glinn, for Appellant.
Boyd & Salisbury, for Respondents.
By the Court, Talbot, C. J.:
This is an appeal from an order setting aside a judgment entered by the clerk upon a default for failure to answer within the time allowed by order of court. To plaintiff's original complaint a demurrer was interposed by defendants, respondents herein, and the demurrer confessed. Plaintiff then filed an amended complaint, to which a demurrer was again interposed, but the same was overruled. Defendants, by order of court, were given ten days thereafter to file their answer to the amended complaint. Not having filed their answer within the time allowed by the order of court, the default of the defendants and a judgment upon default were entered by the clerk. The day following the entry of the default and the default judgment the defendants filed a motion to set aside the default and default judgment and to permit defendants to answer. This motion was based upon the ground of excusable neglect and was supported by the affidavit of one of defendant's attorneys.
A counter affidavit made by the attorney for the plaintiff was filed. The motion coming on to be heard was denied. Subsequently defendants, through their attorneys, filed a notice of motion to vacate and set aside the judgment upon the ground that the same was entered by the clerk without authority of law and was void. Objections to and a motion to strike out the latter motion were interposed by plaintiff's attorney upon the ground that the court was without jurisdiction to consider it; that it was filed without leave of court or authority of law, in violation of district court rule 36; and that the defendants were without standing before
the court entitling them to file such motion or to be heard thereon.
1. The latter motion to set aside the judgment coming on to be heard was granted upon the ground that the clerk entered the judgment without authority of law so to do, and for which reason it was void.
District court rule 36 provides: No motion once heard and disposed of shall be renewed in the same cause, nor shall the same matters therein embraced be reheard, unless by leave of the court granted upon motion therefor, after notice of such motion to the adverse parties.
In so far as the second notice to set aside the default and default judgment was based on the same grounds as were embodied in the first motion and were passed upon by the court in denying that motion, it was contrary to the rule to incorporate them in another motion without notice to the adverse party and leave granted by the court. The second motion filed, however, raised a question, not embraced in the first motion, which went to the validity of the judgment. If the clerk was without power to enter the judgment, the judgment was void, and the court, even of its own motion, could set it aside, and it would be its duty to do so.
2. The order setting the judgment aside was based solely upon the ground that the clerk was without power to enter default and judgment thereon, although the time for answering had expired, for the reason that there had been filed in the case by defendants, and overruled by the court, a demurrer which raised an issue of law. Whether the order can be supported on this ground depends upon the construction to be placed upon the section of the statute prescribing when a default judgment may be entered by the clerk without an order of court.
Section 152 of the old practice act, as amended in 1907 by the addition of a sentence defining the meaning of the word answer as used in the section, corresponds to section 5236 of the Revised Laws, which reads: Judgment may be had, if the defendant fail to answer the complaint, as follows: (1) In an action arising upon contract for the recovery of money or damages only, if no
answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, the clerk, upon the application of the plaintiff, shall enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the summons, including the costs, against the defendant, or against one or more of several defendants, in the cases provided for in section 89. (2) In other actions, if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, the clerk shall enter the default of the defendant; and thereafter the plaintiff may apply at the first, or any, subsequent term of the court, for the relief demanded in the complaint. If the taking of an account, or the proof of any fact, be necessary to enable the court to give judgment or to carry the judgment into effect, the court may take the account, or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of damages, in whole or in part, the court may order the damages to be assessed by a jury; or if, ...