SMITH v. SMITH, 82 Nev. 384 (1966)

419 P.2d 295

No. 5093Supreme Court of Nevada.
October 26, 1966

Appeal from Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.

Bissett, Logar Groves, of Reno, for Appellant.

Vargas, Dillon, Bartlett Dixon, and Albert F. Pagni, of Reno, for Respondent.

Page 385

OPINION
By the Court, THOMPSON, J.:

The issue on this appeal is whether the premature entry of a default divorce decree renders that decree absolutely void, or merely voidable. By an independent action, Margaret Smith attempted to set aside such decree obtained by her husband some fifteen months earlier. He moved for a summary judgment which the lower court granted. This appeal followed. We affirm.

The divorce action was commenced by George Smith on July 31, 1964. All procedural requirements for the service of process were met. Process was sent for personal service outside the state (NRCP 4(e)(2)) to Brookline, Massachusetts, the wife’s home, and to Montreal, Canada, where her parents lived. According to the record, she was served with process twice; first in Brookline on August 3, 1964, and the second time in Montreal on August 14, 1964. Her default was entered, the case tried, and decree granted on August 25, 1964. The court heard the case because more than 20 days had passed since the Brookline service. It later developed that service was not in fact made upon the defendant on August 3, but that she was served in Montreal on August 14.[1] This being so, the hearing on August 25 was premature. The appellant contends that the divorce judgment is void under these circumstances and may be

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set aside by an independent action at any time. The respondent urges that the divorce judgment is voidable, and must be challenged by motion within six months thereafter, or not at all. The respondent is correct.

1. The court acquired jurisdiction over the defendant on August 14 when she was served with process in Montreal, Canada. Herman v. Santee, 103 Cal. 519, 37 P. 509 (1894). Its premature hearing of the case on August 25 was a procedural irregularity within jurisdiction (White v. Crow, 110 U.S. 183, 28 L.Ed. 113, 4 S.Ct. 71 (1884); California Casket Co. v. McGinn, 10 Cal.App. 5, 100 P. 1077 (1909); Dallam County Bank v. Burnside, 31 N.M. 537, 249 P. 109 (1926); Field v. Otero, 35 N.M. 68, 290 P. 1015
(1930)), rendering the judgment voidable. The Nevada decision of La Potin v. La Potin, 75 Nev. 264, 339 P.2d 123 (1959), does not touch the problem at hand since the defendant there was not served with process and the court never acquired jurisdiction. The appellant’s reliance upon that case is misplaced.

2. A voidable default judgment may be set aside “for good cause shown” (NRCP 55(c)), in accordance with the provisions of NRCP 60 (b) and (c).[2] The court

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heard the divorce case prematurely through no fault of its own. Nor was it persuaded to do so by any improper conduct on the part of the plaintiff in that action — the defendant-respondent here. The affidavit of the deputy sheriff, swearing that he had served process on the defendant at Brookline, Massachusetts, on August 3, was executed in good faith. It later developed that he had served a third person, believing that person to be the defendant — an honest mistake as to identity. In these circumstances extrinsic fraud does not exist. Richert v. Benson Lumber Co., 139 Cal.App. 671, 34 P.2d 840 (1934); 3 Witken, Cal. Procedure § 64. Indeed, the record before us does not show fraud of any kind, nor does it reflect misrepresentation or misconduct. Therefore it was incumbent upon Mrs. Smith to move to set aside the voidable decree within six months after its entry, as allowed by NRCP 60(b)(1), upon the ground of surprise. This she failed to do. Since a basis for an independent action does not exist, the summary judgment entered below is affirmed.

COLLINS, J., and ZENOFF, D.J., concur.

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