Opinion
No. 2856
January 18, 1929.
Appeal from the District Court of the Seventh Judicial District of County of Mineral; J. Emmett Walsh, Judge.
Cyrus A. Hovey and Green Lunsford, for Petitioner:
C.C. Ward, District Attorney, and M.A. Diskin, Attorney-General, for Respondents:
Petitioner is a domestic corporation organized under the laws of the State of Nevada. In the action in which the judgment was rendered here sought to be reviewed, service was made upon A.W. Curtis, a director of the corporation. The only question involved is the validity of such service, and whether the court acquired jurisdiction of the person of the defendant or the subject matter of the action by service upon the director. There was no attachment or sequestration of the property, and no other service was attempted to be made save that upon the director. The defendant did not appear.
The only provisions relating to service of process upon corporations which we are able to find are: Section 5023, subdivision 1, Rev. Laws; section 81 of the general corporation law of 1925 (Stats. 1925, 318), under which this corporation was organized; and section 87 of the general corporation law of 1903, as amended by the Statutes of 1913, at page 65. Service upon a director, who was also a stockholder, does not comply with any of the mandatory provisions of the statute. Fletcher on Corporations, vol. 4, sec. 2992, p. 4420; sec. 3001, p. 4440; 32 Cyc. 549.
It is only when the judgment has been voluntarily paid that it will not be reviewed by certiorari. If the judgment has been paid under what may be regarded as "legal compulsion" the judgment will be reviewed. Calif. Juris. 1065, sec. 34; Nall v. Superior Court, 4 Cal.App. 207.
There is no case here to move the exercise of this court's discretion to remit this matter to a court of equity, as in the case of Nevada Lincoln Mining Co. v. District Court (Nev.), 187 P. 1006. This is simply a case where judgment was obtained without jurisdiction, the property sold on execution and without any complicated interests or features requiring the intervention of equity. In such a case this court is already vested by law with plenary power under the constitution and statutes of this state and under prior decisions of this court to inquire into the jurisdiction of the court below, set its judgment aside, and place all parties in statu quo. It is provided in 2 Rev. Laws of Nevada, 5691, sec. 749, that: "When a full return has been made the court shall proceed to hear the parties, * * * and may thereupon give judgment, either affirming or annulling or modifying the proceedings below."
Accordingly, it is generally held that in reversing the judgment of the court below the court may, in case other rights have intervened by purchase under execution, or otherwise, order restitution to the execution purchaser of the money paid on the sale. 1 C.J. 213, sec. 384; Paul v. Armstrong, 1 Nev. 82, 104; Leonard v. Peacock, 8 Nev. 157; Kennedy v. Hamer, 19 Cal. 374, 386; People v. Chapin (N.Y.), 42 Hun. 24.
There is nothing that a court of equity could do in the matter that cannot be done by this court here and now, thereby avoiding unnecessary expense, further delay and repetitious litigation. The best definition of an adequate remedy we have found is contained in 11 C.J. 112, secs. 55-56.
The acknowledgment of service of summons by the defendant in the action sought to be reviewed, which appears in the record herein, cures any defect in the service of summons which may have existed prior thereto. Cheney v. Harding, 21 Neb. 65, 31 N.W. 255; Allured v. Vollier, 107 Mich. 476, 65 N.W. 285; McClellan v. Gaston, 18 Wn. 472, 51 P. 1062; Woolsey v. Abbett, 65 N.J.L. 253, 48 A. 949.
The judgment herein sought to be reviewed having gone to execution and satisfaction, a review thereof by this court would be a useless ceremony. State of Nevada v. Washoe County, 14 Nev. 66, 69; Visalia City Water Co. v. Superior Court for Tulare County, 120 Cal. 219, 52 P. 485; Burr v. Sacramento County Supervisors, 96 Cal. 210, 31 P. 38.
The order for the writ and the writ are based upon affidavit and petition of a corporation not petitioner herein, hence the writ is without foundation. Overseers v. Bishop, 2 How. Pr. (N.Y.) 195; Holmes v. Cole, 51 Or. 483, 94 P. 964.
The writ was improperly issued for the reason that it was issued upon an order signed by two of the justices, acting as such, in chambers, and not by the court. Constitution of Nevada, art. VI sec. 4; Rev. Laws, 5684; Smith v. City of Oakland, 40 Cal. 481, adopted as the text of California Jurisprudence, vol. 4, p. 1083.
There is no party petitioner herein. The petition and affidavit herein is entitled "The State of Nevada, petitioner, on the relation," etc. Upon presentation of this matter to this court, we raised the point that the State of Nevada was not a proper party petitioner to this action, on the grounds that the state has no interest in the matters involved, and cited authorities so holding. Counsel for petitioner conceded the point, so we submit that the State of Nevada, as petitioner herein, is eliminated. There was and is no other person named as petitioner. We submit that a petition without a petitioner, on the relation of any person, is no petition. Therefore, there is no petition or application before the court.
The affidavit in support of the application for writ does not state facts sufficient to justify the issuance of the writ, in that there is no allegation that applicant has any beneficial interest in the matter sought to be reviewed. Rev. Laws, 5685; Hildebrand v. Superior Court, 173 Cal. 86, 159 P. 147; Morse v. Williams, 92 Mich. 250, 52 N.W. 629; Garrison v. County Court, 54 Or. 269, 101 P. 900; Collins v. Keokuk, 108 Iowa 28, 78 N.W. 799; State ex rel. Allen v. Napton, Judge, 24 Mont. 450, 62 P. 686.
There is no allegation in the said application that the applicant has no other plain, speedy and adequate remedy. The record here shows that execution has been duly issued and returned satisfied. If there be any parties who consider themselves injured by that action, we submit that their proper remedy is by a suit to set aside the sale. Rev. Laws, 5080; Stanton-Thompson Co. v. Crane, 24 Nev. 171, at p. 181; State ex rel. Kerr v. District Court, 32 Nev. 189; Bank of Topeka v. Huntson, 35 Kans. 577, 11 P. 369.
OPINION
This is an original proceeding in certiorari to inquire into the jurisdiction of the respondent court to render the judgment complained of.
The application for the writ alleges that on June 19, 1928, William Royle, as labor commissioner of Nevada, instituted an action in the Seventh judicial district court of Nevada in and for Mineral County against Nevada Douglass Gold Mines, Inc., a Nevada corporation, to recover judgment upon several claims assigned to him for labor alleged to have been performed; that upon filing of the complaint in said action, summons was issued and placed in the hands of the sheriff for service, and that he made purported service thereof by delivering a copy thereof, together with a copy of the complaint, to A.W. Curtis, a director of said defendant company, on June 25, 1928; that on October 1, 1928, the respondent court entered judgment in said action in favor of the plaintiff and against the defendant; and that thereafter execution issued thereon and that the sheriff was proceeding to sell the property of the defendant. The application states that said company had never appeared in said action by demurrer or otherwise; it is verified by one Stephenson, who states on oath that he is the agent of said company and verified the same on its behalf.
The respondent demurred and also moved to quash. We will consider them together.
It is contended that the application for the writ does not state facts sufficient to warrant its issuance; that it is not entitled in the name of any one interested in the proceeding; that it is not signed by an attorney who is a member of the bar of this state; and that it does not show that applicant has no plain, speedy, and adequate remedy by appeal.
1. The application for the writ is designated a petition and is entitled "State of Nevada, on the Relation of Nevada Douglass Gold Mines, Incorporated, Petitioner, v. The District Court, etc., Respondent." The title is not a very appropriate one, since the State of Nevada has no interest in the matter; but we think that will not justify a dismissal of the proceeding. Section 5684, Rev. Laws, provides the writ of certiorari may be granted "on application," and section 5685 provides that "the application" shall be made on affidavit. The application in this matter, though entitled as above stated, is in the form of an affidavit, and is in substantial compliance with the requirements of the statute. We can perceive no merit in the objection made, since the affidavit states that the affiant is an agent of the company beneficially interested, and against which the alleged judgment was rendered.
2-4. We think the application states facts sufficient to justify the issuance of the writ. The applicant is a Nevada corporation. Statutes of 1913, p. 65, names the persons upon whom a summons must be served. None of the persons named in the statute was served in the action sought to be reviewed. It is true that service was made upon a person not designated in the statute, but there is no contention by counsel that service was made on any one designated by statute. In this situation the judgment is void ab initio. But it is said in this connection that after the judgment was rendered the company appeared in the action. There is in the record what purports to be an appearance on November 3, 1928, by one who designates himself as vice-president and general manager. There is no showing that the individual named was such officer, nor that he had authority to make such appearance, but, whatever his authority, it is self-evident that such an appearance could not relate back to date of the rendition of the so-called judgment so as to vitalize that which never had life.
5. There is nothing in the contention that there is no showing in the application that the applicant has no right of appeal. It appears that the applicant was not served with summons. We think this showing enough. We have never understood that one against whom a judgment has been rendered without his day in court is driven to the necessity of appealing from a void judgment, thereby giving the court jurisdiction over his person. A defendant must be brought into court by due process, and until he is so brought in no judgment can be rendered against him necessitating a voluntary appearance to rid himself of what is a judgment in form only.
It was held in Jones v. Justice Court, 97 Cal. 523, 32 P. 575, in a suit before a justice of the peace where the defendant had been served with summons and thereafter appeared, that the judgment rendered therein without notice to the defendant of the date of the trial of the case, as required by statute, was excess of jurisdiction and void and should be set aside in certiorari. It was so held, also, in Elder v. Justice Court, 136 Cal. 364, 68 P. 1022.
6. It is said that, pursuant to authority of the opinion of this court in the matter of Nevada Lincoln M. Co. v. District Court, 43 Nev. 396, 187 P. 1006, we should refuse to order that the writ issue as prayed. The facts in that case are very dissimilar to those in this case. In the first place, it appears on the face of the judgment roll in the matter here under consideration that the judgment is absolutely void. Such was not the fact in the case cited. Furthermore, in that case over two years had elapsed after the sale before relief was sought, during which time large sums of money had been spent by the purchaser and a valuable mine developed. There the company stood by while others gambled on the prospects. Not so in the instant case. This proceeding was instituted within a few days after the sale under the void judgment.
7. There is no merit in the contention that the application is not signed by a member of the bar of this state. The statute does not require that such an application be signed by an attorney.
8. The judgment complained of being void for want of jurisdiction, it is ordered that the same be and is hereby set aside and held for naught, together with all of the proceedings had pursuant thereto, including the pretended sale, and that applicant have judgment for its costs herein.