BOWMAN VS. BOWMAN (DIVORCE)

Key holdings

Practitioner summary

Appeal by plaintiff husband from orders vacating his February 17, 1922 default divorce decree (constructive service by publication and mailing) and permitting defendant wife to answer. The controlling clause of Rev. Laws 5084 allows a defendant not personally served with summons and complaint to be permitted, within six months after rendition of judgment, to answer to the merits. Defendant served and filed her notice of intention to move, with her attorney's supporting affidavit, on August 15, 1922; the motion was heard September 15 and granted October 10, 1922. Held: the statute is remedial and liberally construed (Howe v. Coldren, 4 Nev. 171); giving and filing the notice of intention within the six-month period is a sufficient initiatory step, and relief may be granted after the period expires (analogizing Lind v. Webber, 36 Nev. 623; following Osmont v. All Persons, 165 Cal. 587, under the borrowed California practice; accord Stanton-Thompson Co. v. Crane, 24 Nev. 171, 181; District Court Rule 45). The attorney's affidavit sufficed where he was familiar with the facts and it disclosed information from the defendant of a good and meritorious defense; an answer tendered at the hearing and ordered filed cured any deficiency. Unlike the mistake/inadvertence clause, the constructive-service clause requires no showing of lack of actual notice (following Gray v. Lawlor, 151 Cal. 352), and no written motion is required where the notice and affidavit fairly disclose the relief sought. Orders affirmed; rehearing denied per curiam.

In plain language

A husband obtained a default divorce on February 17, 1922, after serving his wife only by publication in a Winnemucca newspaper and by mailing copies to her address in Illinois. On August 15, 1922 - within six months of the judgment - the wife's attorney served and filed a notice that she would move to set the decree aside because she had never been personally served. The court heard the motion on September 15 and, on October 10, 1922 (after the six months had run), vacated the judgment and let her file an answer. The husband appealed, arguing the court lost power once six months passed. The Nevada Supreme Court affirmed. The statute lets a defendant who was never personally served answer to the merits at any time within six months after judgment, and the court held that serving and filing the notice of intention to move within that window was enough - the court could grant the relief after the window closed. The court also rejected the husband's attacks on the supporting affidavit: the wife's attorney could make it if familiar with the facts, it sufficiently showed a meritorious defense (and an answer was actually tendered at the hearing), and the wife did not have to show she lacked actual notice of the suit, because the statute imposes no such condition where there was no personal service.