KLEPPER VS. KLEPPER (DIVORCE)

Key holdings

Practitioner summary

Second reported appeal in the Klepper divorce litigation (No. 2804; the earlier reported ruling in the same appeal (51 Nev. 145, denying a motion to dismiss) appears at 51 Nev. 145). Defendant appealed from the order denying his motion to quash constructive service, contending the affidavit for publication of summons stated mere conclusions and made no due-diligence showing, relying on Perry v. District Court, 42 Nev. 284, 174 P. 1058. Coleman, J., held the affidavit sufficient: it stated positively the nonresident defendant's place of residence by city, street, and number, and where the plaintiff knows the defendant's residence there is no occasion for the exercise of diligence; the accompanying recital that defendant could not be found in Nevada, insufficient standing alone, was surplusage. The court noted the post-Perry amendment to the publication-affidavit statute (Stats. 1923, p. 275, c. 158), which supplies a form of showing for defendants formerly known to reside out of state whose present address is unknown, and held this case outside the amendment's purview because the defendant's present address was known and stated.

In plain language

A wife filed for divorce in Nevada while her husband lived in Norfolk, Virginia. Because the husband was outside the state, she filed a sworn affidavit and obtained a court order allowing the summons to be served by publication. The husband asked the court to throw out (quash) the service, arguing that her affidavit stated bare conclusions and did not show she had diligently tried to find him. The trial court refused, heard testimony, and granted the wife a divorce. The husband appealed only the ruling refusing to quash service. The Nevada Supreme Court affirmed. The purpose of the affidavit is to let the court determine where the defendant lives, if known, so that notice will most likely reach him. This affidavit gave the husband's exact address - 4202 Granby Street, Norfolk, Virginia - so there was no occasion for any exercise of diligence. The additional statement that he could not be found in Nevada, which standing alone would have been insufficient, was mere surplusage. The court distinguished its earlier Perry decision, where the affidavit had merely claimed due diligence without stating supporting facts, and explained that a 1923 amendment to the statute covers the different situation where a defendant's present address is unknown, which was not this case.