Opinion
No. 6209
December 15, 1970
Appeal from Eighth Judicial District Court, Clark County; Taylor H. Wines, Judge.
R. Paul Sorenson, of Las Vegas, for Appellant.
Lionel, Sawyer Wartman and Steve Morris, of Las Vegas, for Respondent.
OPINION
Paradise Palms Community Association has appealed from two orders of the district court denying the Association's motions to (1) set aside a default judgment and (2) alter or amend the order that denied the motion to set aside the default. We affirm the orders of the district court denying both motions.
The motion to set aside the default was filed approximately 19 months after the default had been entered. It was predicated on Rule 60(b) of the Nevada Rules of Civil Procedure, and particularly reason (3) cited therein, that the judgment was void because the person who had accepted service for the Association was not in fact at that time an officer of the Association. After a hearing before the court, the judge found otherwise, and he denied the motion on November 7, 1969. Notice of entry was served on November 10, 1969.
NRCP 60(b):
"(b) Mistakes; Inadvertence; Excusable Neglect; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud, misrepresentation or other misconduct of an adverse party which would have theretofore justified a court in sustaining a collateral attack upon the judgment; (3) the judgment is void; or, (4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that an injunction should have prospective application. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action."
Rather than appeal at that time from the order of denial, the Association sought to amend or alter the judgment of denial by filing on November 21, 1969, a 59(e) motion, which the judge denied on December 11, 1969. The Association filed a notice of appeal from both orders of denial on January 5, 1970. The 30-day period from notice of entry of judgment denying the 60(b) motion had expired. NRCP 73(a). The 30-day period is jurisdictional. See Culinary Workers v. Haugen, 76 Nev. 424, 357 P.2d 113 (1960); Smilanich v. Bonanza Air Lines, 72 Nev. 10, 291 P.2d 1053 (1956); Rogers v. Thatcher, 70 Nev. 98, 255 P.2d 731 (1953).
NRCP 59(e):
"(e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after service of written notice of entry of the judgment."
NRCP 73(a):
"(a) When and How [ Appeal] Taken. When an appeal is permitted the time within which an appeal may be taken shall be 30 days from service of written notice of the entry of the judgment appealed from. . . ."
Since we have ruled that a 59(e) motion may not be utilized to vacate a default judgment, it is not available to toll the 30-day appeal period from an order denying a 60(b) motion. See Chiara v. Belaustegui, 86 Nev. 856, 477 P.2d 857 (1970).
The orders of the district court denying both motions are affirmed.