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Perry v. District Court

December 31, 1918

EDWARD ALSTON PERRY, PETITIONER, V. THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF ESMERALDA; J. EMMETT WALSH, JUDGE OF SAID COURT, AND LUCY LAND PERRY, RESPONDENTS.


Petition for certiorari to review an order vacating and setting aside decree for divorce by Edward Alston Perry against the District Court of the Seventh Judicial District of the State of Nevada, in and for the County of Esmeralda, J. Emmett Walsh, Judge of said court, and Lucy Land Perry. Writ dismissed.

M. A. Diskin, for Petitioner.

Thompson & Thompson, for Respondents.

By the Court, Coleman, J.:

This is a proceeding in certiorari. Petitioner obtained a decree of divorce in respondent court on December 31, 1914, against Lucy Land Perry. Thereafter the defendant in the divorce action, through her attorney, moved

[42 Nev. 284, Page 287]

the court to set aside the decree granting the divorce. Numerous grounds were urged as a basis for the motion. The court set a date for the hearing of the motion, notice of which was served upon the attorney who represented the plaintiff in the divorce action. Upon the hearing the court entered an order vacating and setting aside the decree mentioned. The present proceedings are to review the order of the court thus made.

The only ground urged as a basis for the contention that the district court was without jurisdiction to set aside the decree of divorce is that the application therefor was not made within six months from the entry of the decree of divorce. It is insisted that the right to set aside the decree in this case is limited to the right conferred by section 5084, Revised Laws, wherein it is provided:

“* * * And when, from any cause, the summons and a copy of the complaint in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representatives, at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action.”

1. In our opinion, this section does not apply to this case. The statute quoted was made to cover cases in which there was a valid service by publication. The court, in entering the order vacating the decree of divorce, found that the defendant “was not served with summons in said cause, as required by law.” The court also found:

“That said plaintiff, Edward Alston Perry, knew that defendant had been committed to the state hospital for the insane at Raleigh, N. C. He also knew that she had been taken from said last-named institute to Dr. C. O. Sahler's institute in the State of New York, where said defendant has remained and is located at the present time. That said plaintiff knew all of these facts before he commenced the above-entitled suit, and at the time he made the affidavit for publication of summons in the above suit. That said plaintiff appeared in the superior

[42 Nev. 284, Page 288]

court of Halifax County, N. C., before the clerk thereof and objected to certain allowances being made out of the estate of defendant for her care and support at said last-named institute. That said objections were made by plaintiff in the month of July, 1913, about three months prior to his making the said affidavit for publication of summons in this cause. That at the time said plaintiff, Edward Alston Perry, made the said affidavit to secure an order to serve the summons in the above cause by publication, he knew the residence and the postoffice address of the defendant, and he knew that she had a general guardian and that she was in the care of Dr. C. O. Sahler at his said institute. He knew when he stated in said affidavit ‘that the defendant's address is unknown to plaintiff,' that the same was false, and was done for the purpose of preventing said defendant, her guardian, or said Dr. C. O. Sahler from being served with summons, or receiving any notice of the commencement of said suit.”

2. It was upon these findings that the court based the order vacating the decree of divorce. If the finding that the defendant in the divorce action was not served with summons can be sustained under the law, then the decree of divorce was null and void ab initio for lack of jurisdiction in the court to enter it, and hence these proceedings must be dismissed. In our opinion, the court never acquired jurisdiction to make the order of publication of summons or enter the decree of divorce. The section of our statute which authorizes the service of summons by publication (Rev. Laws, 5026) reads:

“When the person on whom the service is to be made resides out of the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons and the 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 ...


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