One of the legal remedies suggested by defendant Ross was that plaintiff could have moved to set aside the judgment taken against it through its mistake, inadvertence or excusable neglect. This court said [ 20 Nev. The action, brought by Gould, was commenced September 9, the default was entered September 21, and the execution was issued October 16, The published notice of sale could not, therefore, have been seen by the president of plaintiff, in New York, earlier than the 21st of October, The term of the district court at which the judgment was rendered, expired on the 9th of October, The statutory remedy by motion, in cases where there has been a personal service of the summons, is only available during the term at which the judgment is rendered.
In the Stimson case [ 47 Nev.
Washington family court rules
At that time section of the civil practice act provided in part: "And when, from any cause, the summons, and a copy of the complaint in an action have 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.
It does not, nor does any part of it, apply to the instant case. About eleven years after rendition of a decree of divorce to the husband, the wife noticed a motion to have it vacated. In her supporting affidavit she stated that the order for publication of summons was obtained by fraud, in that at the time of making the affidavit upon which the order of publication of summons was obtained and at the time said order was obtained, plaintiff husband knew that she resided at Corvallis, in the State of Oregon, and that her post-office address was at that place; and that plaintiff's affidavit was false and untrue, and was made for the purpose of concealing the pendency of the action, and obtaining a decree of divorce without her knowledge, and to conceal from the court her whereabouts and to prevent her from making a defense to the action.
In their brief in the present proceedings respondents say that the wife's affidavit in the Stimson case presents intrinsic, not extrinsic fraud. We do not agree; her affidavit, in our opinion, presents a clear case of extrinsic fraud not only as to the wife, but upon the court as well. The husband objected to the court's hearing the motion, on the ground that it had no jurisdiction. His objection having been overruled, he applied for a writ of prohibition. This court, in the course of its opinion, said: "But it is strenuously insisted and argued on behalf of the respondents that where it is made to appear by motion that the judgment was obtained by the plaintiff's fraudulent and wrongful conduct in obtaining service of process, and where it is made to appear from the motion that the judgment is a fraud upon the defendant and upon the court, the court, in furtherance of justice and the preservation of the integrity of its own process, has the right, and it is its duty, to entertain the motion to vacate the judgment, independently of the statute.
In the following Nevada cases attacks on judgments upon the ground of fraud were made by separate action; Calvert v. Calvert, 61 Nev. Wade, 41 Nev. Lewis, 34 Nev. In the present case the action of the district court in vacating the divorce decree was without jurisdiction and void. In the foregoing discussion relating to jurisdiction, we have assumed that Mrs.
Isabella county court docket
Adams' showing in the lower court presents the case of a decree which she was induced, by means of extrinsic fraud, to procure. This assumption was for purposes of discussion only, and nothing herein is to be understood as indicating any opinion on the part of the court as to whether she has made out such a case. Respondents contend that petitioners have waived the benefits, if any, of district court rule XLV by the appearances made and proceedings had in the district court.
They cite Raps v. Raps, 20 Cal. In the instant case, besides the alleged loss of jurisdiction by lapse of time, the executors objected to the hearing of the motion to vacate upon the further ground that there had been no adequate, effective or sufficient service of the notice of motion. A reading of the Raps case discloses that, under the California rule, the order vacating the decree of divorce was within the jurisdiction of the trial court In the present case the order vacating the decree was without the trial court's jurisdiction, and void.
In Stimson v. In their return and answer, respondents say that petitioners are attempting to convert this proceeding for prohibition into a proceeding in certiorari or an appeal. Certiorari would not lie, because the executors could have appealed. But an appeal from the order vacating the decree would not have been adequate, because the executors had been excusably prevented from making a full and adequate showing on the merits of the motion.
True, the executors could proceed with the rehearing, and appeal in the event of an adverse decision.
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But if this court should require that such a course be pursued, we would be directing the lower court to proceed, at great expense to the parties, with a matter which it has no power to hear. That court is as completely without jurisdiction to rehear the motion to vacate as it was to hear it in the first place. It is ordered and adjudged that the alternative writ be made absolute.
Back to Results. Download Print Get alerts. Lauer et al. District Court 62 Nev. Browse cases. District Court. Cases citing this document How cited Finley v. Finley The proposition amounts simply to this: That the court had jurisdiction to entertain, by virtue of District… Zeig v. Zeig The favored expression in that connection was, "remains in the breast of the court. Summaries written by judges Summaries In Lauer v. Copy with citation. Search Official Records. The mission of the Utah Courts is to provide the people an open, fair, efficient and independent system for the advancement of justice under the law and improve the quality of life in our The Justice Court handles all Class B, Class C, and Infraction violations that occur in Wasatch County.
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