Opinion
No. 2804
August 1, 1929.
APPEAL from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Wm. M. Kearney and Sidney W. Robinson, for Appellant:
Painter Withers, for Respondent:
The recital in the affidavit filed in the trial court as a basis for the order of publication of summons in this case is wholly insufficient to authorize the court to issue an order of publication, and the court acquired no jurisdiction in the case. Perry v. District Court, 42 Nev. 284; Richardson v. Richardson, 26 Cal. 149; Yolo Co. v. Knight, 11 P. 663; McCracken v. Flanagan, 28 N.E. 386; Stimson v. District Court, 223 P. 823; Mills v. Smiley, 76 P. 787; Forbes v. Hyde, 31 Cal. 332. Those cases and the cases cited therein indicate that the statute requires something more than the bare conclusion of the affiant. The statute must be strictly complied with where one relies on constructive service. Coffin v. Bell, 22 Nev. 169.
The statute, sec. 5026, Rev. Laws, as amended by Stats. 1923, p. 275, authorizes service by publication only under certain conditions. When and only when such facts appear as the statute recites, "it shall be presumed that such party still resides and remains out of the state, and it shall not be necessary to use due or any diligence to find such party in this state, or to show by affidavit that due or any diligence was so used." On the other hand, unless the recitals indicated in the statute, or such of them as are applicable, are set forth in the affidavit, we take it the statute requires that a showing of due diligence be actually made. It is the general, if not the universal rule, that all statutes providing for publication of summons or other forms of substituted service of process are "in derogation of the common law, and hence are to be strictly construed and literally observed." 32 Cyc. 476. See, also, Gibson v. Wagner, 136 P. 93.
That the statement of nonresidence does not negative the possibility of defendant's presence in the state is clearly seen from the cases of Carleton v. Carleton. 85 N.Y. 313; and Johnson v. Hunter, 147 Fed. 136.
We cannot agree with counsel for appellant that the 1923 amendment has any bearing whatsoever where, as in the present case, the facts are that the defendant resides out of the state at a known address. We believe that this amendment would not be applicable under such conditions, and that it is only necessary for the plaintiff's affidavit for publication of summons to comply with the requirements of the statute prior to the 1923 addition and to show "to the satisfaction of the court that the defendant resides out of the State of Nevada," and "that a cause of action exists against the defendant, and that the defendant is a necessary and proper party to the action."
The supreme court of Nevada has repeatedly expressed itself in accordance with the general ruling adopted elsewhere that the upper court will not set aside the decision of the lower court upon a question where there are substantial facts to support the judgment. State v. C. C. Railroad, 29 Nev. 504; Burch v. Southern Pacific Company, 32 Nev. 75. In the case at bar the lower court twice held the affidavit sufficient; first, by granting an order of publication of summons, and, secondly, by overruling the appellant's motion to quash the service of summons upon the ground of the insufficiency of the affidavit. In the affidavit in question the essential probative facts are directly set forth, to wit, that the defendant resides out of the State of Nevada and that he resides in a definite city at a definite street address.
As to the sufficiency of the affidavit we cite the following authorities: Anderson v. Goff, 13 P. 74; Furnish v. Mullan, et al., 18 P. 854; Clarkin v. Morris, 172 P. 982; Fue v. Quinn, 66 P. 217; Parsons v. Weiss, 77 P. 1010; Pettiford v. Zoellner (Mich.), 8 N.W. 57.
We contend that the record on appeal affirmatively shows that the respondent has complied with all statutory requirements, and that the default was duly, legally and properly entered.
OPINION
Plaintiff brought suit for a divorce. After the issuance of summons, she filed an affidavit, and obtained an order for publication of summons. The defendant made a motion to quash the service of summons, which, being overruled, the court took testimony and entered a decree in favor of plaintiff. The defendant has appealed from the order denying the motion to quash.
Only one point is raised on this appeal, and that is that the affidavit does not state facts sufficient to give the court jurisdiction to order the publication of the summons, that it states mere conclusions, and that no showing of due diligence is made therein. In support of this contention our attention is directed to the case of Perry v. District Court, 42 Nev. 284, 174 P. 1058.
Omitting the formal parts of the affidavit, it reads:
"That defendant resides outside of the State of Nevada, to wit, 4202 Granby Street, Norfolk, Virginia; and that he is not now and cannot be found in the State of Nevada, and that said defendant's present place of residence is 4202 Granby Street, Norfolk, Virginia."
The purpose of requiring such an affidavit is to enable the court to determine the place of residence of the defendant, if known, and, if not, where notice will most likely reach him. The affidavit in the Perry case did not do this, but merely stated that the plaintiff had used due diligence to learn the defendant's place of residence. We held that the affidavit should show what efforts the plaintiff had made to ascertain the defendant's address, that the court might determine whether or not the plaintiff had used due diligence. In the instant case the affidavit states the place of residence of the defendant — giving the name of the city, street, and number. The plaintiff having this knowledge, there was no occasion for the exercise of diligence. It is true the affidavit states that the defendant cannot be found in the State of Nevada, which, standing alone, would be insufficient, but, since the affidavit states positively where the defendant's residence is, and shows that it is in a sister state, that was sufficient, and the further statement is mere surplusage.
Since the rendition of the decision in the Perry case, supra, the statute relative to affidavits for an order of publication of a summons has been amended (Stats. 1923, p. 275, c. 158) so as to add the following proviso:
" Provided, that when said affidavit is based on the fact that the party on whom service is to be made resides out of the state, it shall be a sufficient showing of such fact if the affiant shall state generally in such affidavit that at a previous time such person resided out of this state in a certain place (naming the place and stating the latest date known to affiant when such party so resided there); that such place is the last place in which such party resided to the knowledge of affiant; that such party no longer resides at such place; that affiant does not know the present place of residence of such party or where such party can be found; and that affiant does not know and has never been informed and has no reason to believe that such party now resides in this state; and, in such case, it shall be presumed that such party still resides and remains out of the state, and it shall not be necessary to use due or any diligence to find such party in this state, or to show by affidavit that due or any diligence was so used."
This amendment contemplates cases in which the present address of the defendant is not known, and where the defendant was at one time known to be a nonresident of this state, and, so far as plaintiff knows, or is informed, still resides without the state. The instant case does not fall within the purview of the amendment.
What we have said disposes of the objection made. The court did not err in its ruling on the motion to quash.
The order appealed from is affirmed.