KLEPPER VS. KLEPPER (DIVORCE)

Key holdings

Practitioner summary

Motion by the respondent wife (plaintiff below) to dismiss the defendant husband's appeal from a default divorce decree entered after his special appearance and motion to quash the summons and its service (personal service in a sister state on affidavit of nonresidence) was denied. Coleman, J. Held: (1) no appeal lies except as authorized by statute; sec. 5329, Rev. Laws, as amended (Stats. 1913, p. 113) nowhere authorizes an appeal from an order denying a motion to quash a summons or its service - Tiedemann v. Tiedemann, 35 Nev. 259, and State v. Moore, 46 Nev. 65, distinguished as involving orders granting motions to quash, which end the proceeding; the correctness of the ruling on the motion to quash may be considered on appeal from the judgment (Potter v. L.A. & S.L.R. Co., 42 Nev. 370; Rev. Laws sec. 4833). (2) The contention that no appeal lies from a default judgment was rejected: Paul v. Armstrong, 1 Nev. 82, Kidd v. Four-Twenty Mining Co., 3 Nev. 381, and Martin v. District Court, 13 Nev. 90, are not in point where an issue of law was made by the motion to quash and was heard and determined; Kidd recognizes that where a default is irregularly taken and judgment entered without proper authority, appeal is the proper remedy. Motion to dismiss the appeal denied.

In plain language

A wife filed for divorce in Nevada. Because her husband lived out of state, he was personally served with the summons in another state after an affidavit of nonresidence was filed. He appeared 'specially' - only to challenge jurisdiction - and moved to quash the summons and its service. The court denied the motion, immediately entered his default when he asked for no time to plead, took the wife's testimony, and granted her a divorce the same day. The husband appealed, and the wife moved to dismiss his appeal. The Nevada Supreme Court refused to dismiss. First, the wife argued the husband should have appealed directly from the order denying his motion to quash; but Nevada statutes list the rulings that can be appealed, and an order denying a motion to quash a summons is not one of them (unlike an order granting such a motion, which ends the case). Since he could not have appealed that order by itself, its correctness can be reviewed on his appeal from the final judgment. Second, the wife argued no appeal lies from a default judgment; the court explained its precedents do not go that far where, as here, an issue of law - the jurisdictional challenge - was actually raised, heard, and decided. The husband's appeal was allowed to proceed.