Opinion
No. 2856
March 8, 1929.
C.C. Ward, District Attorney, and M.A. Diskin, Attorney-General, for Respondents:
Cyrus A. Hovey and Green Lunsford, for Petitioner:
The weight of authoritative precedents is to the effect that: "Where a judgment has been rendered by the court without jurisdiction of the person, a general appearance after such judgment waives all objection to the jurisdiction of the court over the person. Thus a general appearance by defendant after final judgment waives any and all defects and irregularities in the service of process and return, just as fully as it does where such appearance is entered before final judgment." Crane v. Penny, 2 Fed. 187; Lee v. Houston, 20 Ala. 301; Touchstone v. Harris, 22 Ark. 365; Thompson v. Alford, 135 Cal. 52; Balfe v. Rumsey etc. Co., 55 Colo. 97; Ryan v. Driscoll, 83 Ill. 415; Miles v. Goodwin, 35 Ill. 53; Briggs v. Sneghan, 45 Ind. 14; Moffitt v. Chicago Chronicle Co., 107 Iowa, 407; Aherne v. Wa Keeney Land etc. Co., 82 Kan. 435; Barnett v. Holyoke Ins. Co., 78 Kan. 630; Moses v. Hoffmaster, 64 Kan. 142; Baker v. Agricultural Land Co., 62 Kan. 79; Kaw L. Assoc. v. Lemke, 40 Kan. 142; Johnson L. T. Co. v. Burr, 7 Kan. A. 703; Louisville etc. R. Co. v. Jordan, 112 Ky. 473; Tootle-Weakley Millinery Co. v. Billingsley, 74 Nebr. 531; Fisk v. Thorp, 60 Nebr. 713; Dredla v. Baache, 60 Nebr. 655; Tisdale v. Rider, 119 App. Div. 594; Crystal v. Ohmer, 139 N.Y.S. 841; Willett v. Blake, 39 Okla. 261; Farmers Nat. Bank v. Pryor Creek Bank, 24 Okla. 140; Fildew v. Milner, 57 Or. 16; Waymire v. Shipley, 52 Or. 464; Jeannette v. Roehme, 195 P. 230; Taylor v. Sledge, 110 Tenn. 263; Morotock Ins. Co. v. Pankey, 91 Va. 259; Columbia etc. R. Co. v. Moss, 53 Wn. 512; French v. Ajax Oil etc. Co., 44 Wn. 697; Kilpatrick v. Horton, 15 Wyo. 501; Barra v. Peo, 18 Colo. A. 16; Ryan v. Driscoll, 83 Ill. 415; McCarthy v. McCarthy, 66 Ind. 128; Pry v. Hannibal etc. R. Co., 73 Mo. 123; McCormick Harvesting Mach. Co. v. Schneider, 36 Nebr. 206; Boulder Sanatorium v. Vanston, 14 N.M. 436; Yorke v. Yorke, 3 N.D. 343; Clarkson v. Washington, 38 Okla. 4; Welch v. Ladd, 29 Okla. 93; Lookabaugh v. Epperson, 28 Okla. 472; Rogers v. McCord-Collins Mercantile Co., 19 Okla. 115; Anderson v. McClellan, 54 Or. 206; Henry v. Henry, 15 S.D. 80; Pfister v. Smith, 95 Wis. 51; Gilbert-Arnold Land Co. v. O'Hare, 93 Wis. 194; Insurance Co. of North America v. Swineford, 28 Wis. 257.
"As to the immediate parties to the action, a general appearance validates a judgment that was theretofore absolutely void for want of jurisdiction." Barnett v. Holoyoke Mut. F. Ins. Co., 78 Kan. 630, and other authorities, supra. See, also, Deegan v. Deegan, 22 Nev. 185; Bowers on Process and Service, secs. 9-10, pp. 14-15, and authorities cited.
"The authority of any agent to bind the corporation by acceptance or receipt of legal process is seldom conferred by express authority of the principal; it is implied by law from the ostensible relationship between the parties. * * *" Bass v. Am. Products etc. Co., 124 S.C. 346; 30 A.L.R. 168.
Here there was no general appearance. There was only the naked statement — not under oath — that service had been made and was admitted. There was no statement that the corporation appeared in the action. But if there had been such a statement it would have been nugatory, for: "A corporation cannot appear in an action in person; but must appear by attorney." C.J. 14A, p. 812, sec. 2921, and cases cited.
"Appearance by the president of a corporation is not appearing by the corporation." Whitehall v. Concordia, 127 La. 1022, 54 So. 337.
It is good law, as everybody knows, that a general appearance validates a judgment, as to the immediate parties thereto, even though the judgment were theretofore void. But in none of the cases cited by counsel was the general appearance made otherwise than by an attorney at law.
OPINION
The respondent has filed a very elaborate petition for a rehearing, and, as remarkable as it may seem, the only point urged is one barely suggested on the original hearing, which is that the so-called appearance in behalf of the defendant in the lawsuit validated the judgment and sale theretofore made.
As we said in the original opinion, there was no showing that the person who filed such appearance was an officer of the company, nor is there anything to indicate that the signature is genuine. The record in this matter shows that this proceeding was instituted as the result of an authorization by the board of directors held on October 6, 1928. The so-called appearance was after this proceeding was instituted. Certainly, in view of this situation, no serious consideration can be given the so-called appearance.
Our esteemed associate does not disapprove of the foregoing views, but is of the opinion that a rehearing should be granted on a ground not suggested by counsel for the respondents, namely, that section 5023, Rev. Laws, controls, rather than Stats. 1913, c. 76, as to the persons upon whom service of summons must be made when a corporation is a defendant. There are several objections to this view, we think. If the suggestion is sound in law, there is no reason for granting a rehearing. Such action would not result in a different conclusion as to the validity of the judgment, but merely to prolong the agony at additional expense to the litigants. It would not result in a different conclusion, for the reason that the summons in the suit was not served upon a person mentioned in section 5023, Rev. Laws.
But we think the 1913 statute controls. It was adopted subsequent to the adoption of section 5023, Rev. Laws, and pertaining to the same matter must control, where in conflict. State v. Esser, 35 Nev. 429, 129 P. 559. The mere fact that section 81, c. 177, Stats. 1925, provides that service of process shall be made in the manner provided by law for the service of civil process does not affect the situation, since the manner provided by law for the service of civil process upon a corporation is the manner provided by the 1913 act.
For the reasons given, the petition is denied.
I concur.
On further consideration of the record in this proceeding on certiorari, I am of opinion that the petition for rehearing should be granted. The opinion sought to be reviewed ( 51 Nev. 206, 273 P. 659) states:
"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."
I do not consider the act of 1913 to be the law applicable to the service of summons upon a corporation formed under the laws of this state, such as the Nevada Douglass Gold Mines, Incorporated, the petitioner. Stats. 1925, p. 287, c. 177, is entitled: "An act providing a general corporation law." Section 1 of the act provides:
"The provisions of this act shall apply to corporations hereafter organized in this state, except such corporations as are expressly excluded by the provisions of this act. * * *"
The Nevada Douglass Gold Mines, Incorporated, was incorporated after the approval of the act of 1925. Section 81 of the act provides as follows:
"In any action commenced against any corporation, in any court of this state, service of process shall be made in the manner provided by law for the service of civil process."
Section 81 of the civil practice act (section 5023, Rev. Laws) provides:
"The summons must be served by delivering a copy thereof attached to a certified copy of the complaint as follows:
"1. If the suit is against a corporation formed under the laws of this state; to the president or other head of the corporation, secretary, cashier, or managing agent thereof."
In view of these enactments, the statute of 1913, in my opinion, is not now applicable to service of summons on a corporation formed under the laws of this state. It is true this point is not urged in the petition herein as a ground for a rehearing, but, in view of its importance, I think our opinion should be reviewed.