Opinion
No. 2804
November 8, 1928.
APPEAL from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Painter Withers, for Respondent:
W.M. Kearney and Sidney W. Robinson, for Appellants:
The appellant had a right to appeal from the order denying his motion to quash summons, had he elected so to do. This point has been settled by the Supreme Court of Nevada in the cases of State v. Moore, 46 Nev. 65, 207 P. 75, and Tiedemann v. Tiedemann, 35 Nev. 259. However, appellant's notice of appeal from judgment states that the appellant is appealing from a "a judgment and the whole thereof," and appellant does not appeal from the order denying his motion.
Every direction of the court or judge made or entered in writing and not included in a judgment, is denominated an order. An application for an order is a "motion." Rev. Laws, sec. 5362.
A judgment is a final determination of the rights of the parties in the action or proceeding. Rev. Laws, sec. 5238.
The case of Nesbitt v. Chisholm, 16 Nev. 41, holds that the notice of appeal limits the scope of appeal, hence the only question involved is whether or not appellant has a right to appeal from the judgment entered by the court upon the trial of the case.
The general weight of authority does not support appellant's appeal from a default judgment. 3 C.J. 604; 2 Enc. of Pleading and Practice; 6 Enc. of Pleading and Practice, 223; Paul v. Armstrong, 1 Nev. 96; Martin v. District Court, 13 Nev. 90; Wiggins v. Henderson, 12 Nev. 510; State v. Breem, 41 Nev. 519. This general rule has been qualified only to the extent of holding that an appeal will lie from a default judgment erroneously taken in Kidd v. The Four-Twenty Mining Co., 3 Nev. 381.
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 for publication of summons sufficient. The case of Little v. Currie, 5 Nev. 90, is absolutely in point on this question.
An examination of the authorities upon the subject will readily disclose the law to be contrary to respondent's contention that no appeal will lie from a default judgment, at least in states whose statutory provisions on appeal resemble or are identical to that in force in our own jurisdiction, wherein no attempt is made to distinguish a default judgment from any other final judgment. (Rev. Laws, 1912, section 5329). One of the best statements of the rule, and the leading case, is that of Hallock v. Jaudin, 34 Cal. 167, at 172. In particular is the statement in Rhode Island Mortgage and Trust Co. v. City of Spokane, 53 P. 1104, in point, as is Oregon R. and Nav. Co. v. McCormick (Wn.), 89 P. 187.
OPINION
Plaintiff instituted her suit for a divorce. An affidavit of nonresidence of the defendant having been made, a copy of the summons was served upon him personally in a sister state. Before the time within which to plead had expired the defendant appeared specially and moved to quash the summons and the service thereof, on jurisdictional grounds. The motion to quash having been heard and denied, and no request having been made by the defendant for time within which to plead, the court ordered that defendant's default be entered. The court then immediately proceeded to take the testimony in behalf of the plaintiff, at the conclusion of which judgment and decree were entered in her favor. In due time the defendant took an appeal to this court. The matter is now before us on plaintiff's motion to dismiss the appeal.
1. In support of the motion to dismiss two points are made. It is first contended that since the appeal is from the judgment and not from the order denying the motion to quash, the appeal must be dismissed for the reason that the order was an appealable order, and, no appeal having been taken therefrom, error in denying the motion, if any, cannot be considered.
In support of the contention that the order might have been appealed from, our attention is directed to Tiedemann v. Tiedemann, 35 Nev. 259, 129 P. 313, and to State v. Moore, 46 Nev. 65, 207 P. 75, 22 A.L.R. 1101.
Section 5329, Rev. Laws, as amended (Stats. 1913, p. 113), provides when an appeal may be taken, and no appeal can be taken except when authorized by statute. Nowhere does our statute provide that an appeal may be taken from an order denying a motion to quash a summons, or the service thereof; hence it is clear that the defendant had no right of appeal from the order in question.
The two cases are not in point. Those were cases in which the motion to quash was sustained, and hence the order was appealable since it put a finality to the proceeding, as pointed out in the respective opinions. No such result followed the order complained of in this case.
2. We come now to the contention that the motion must be granted since there is no appeal from a default judgment.
In support of the contention made, reliance is had upon the case of Paul et al. v. Armstrong, 1 Nev. 82, Kidd v. Four-Twenty Mining Co., 3 Nev. 381, and Martin v. District Court, 13 Nev. 90.
We do not think the opinion in either of the cases mentioned is authority for the contention made. In the first case the opinion states:
"In this cause there was no answer, no issue, either of law or fact — of course there could be no trial in the probate court. The statute says that, upon an appeal, the case shall be tried de novo in the appellate court. That is, as I understand it, in the same manner, with the same effect, and upon the issues tried in the" lower court.
It is thus seen that that opinion can be no authority in the instant case, where an issue of law is made by the motion to quash, which was heard and determined.
But if the facts in that case were such as to make it controlling, its force and effect is greatly weakened by the opinion in the second case mentioned, wherein, after pointing out the reason why the first-named case is of little weight, the court, in considering the weight to be given to certain New York cases relied upon, observed that in those cases no question of the regularity of the default was raised. The court then goes on to say:
"This is a very different case from that. Here the default was irregularly taken, and judgment is entered without proper authority. In such case it has repeatedly been held in California that an appeal is the proper remedy. * * *"
The court held the appeal proper and reversed the default judgment.
Nor is the case of Martin v. District Court in point. As appears from the opinion in that case, "there was no issue of law or fact to be tried."
3. This court may consider the correctness of a ruling of the lower court on the motion to quash, on appeal from the judgment. Potter v. L.A. S.L.R. Co., 42 Nev. 370, 177 P. 933; Rev. Laws, sec. 4833.
For the reasons given, the motion is denied.