NAHAS VS. NAHAS (DIVORCE)

Statutes cited

Key holdings

Practitioner summary

Appeal from an order setting aside a default judgment and decree of divorce and permitting the defendant-husband to answer. The wife obtained the decree by default after serving the husband in Lebanon by out-of-state personal service; the husband moved within six months under Section 8640 N.C.L. to set aside the default. The dispositive assignment was whether "personal service" as used in Section 8640 means personal service within Nevada. The court held that it does. Authority for out-of-state service (Section 8583 N.C.L., as amended by Stats. 1931, p. 159) makes such service merely "equivalent to completed service by publication," not personal service; substituted service outside the state cannot be the basis of a personal judgment. The court followed Wheaton Flour Mills Co. v. Welsh, 122 Minn. 396, 142 N.W. 714, and held, consistent with Bowman v. Bowman, 47 Nev. 207, 217 P. 1102, that actual knowledge of the pendency of the action is not a factor in determining whether service was personal within Section 8640. Because the husband had not been personally served within Nevada and moved within the six-month period, he was entitled to answer to the merits. The court declined to reach laches or estoppel (not responsive to any assignment of error) and noted the issue had since been addressed by a 1939 amendment (Chapter 154, Statutes 1939, p. 205). Affirmed.

In plain language

A wife came to Reno and got a divorce by default after her husband, who was in Lebanon, was served with the papers there by personal delivery rather than by newspaper publication. Months later - but still within six months of the divorce - the husband asked the court to set aside the default and let him answer the case. The trial court set the default aside. The wife appealed. The key question was what the phrase "personally served" means in the Nevada statute (Section 8640) that lets a defendant who was not personally served reopen a default within six months. The wife argued that because her husband had been personally handed the papers abroad, he had been "personally served" and could not use the statute. The Nevada Supreme Court disagreed and affirmed. It held that "personal service" in the statute means personal service within Nevada. Serving someone outside the state is only the equivalent of service by publication - a substitute that cannot support a personal judgment - not true personal service. Whether the husband actually knew about the case did not matter. Because he was not personally served inside Nevada and acted within six months, he was entitled to reopen the default and answer on the merits.