WILLIAMSON VS. WILLIAMSON (DIVORCE)

Key holdings

Practitioner summary

Appeal by the defendant wife from an order denying her motion to set aside a default and divorce judgment entered March 21, 1925 on constructive service. Ducker, C.J. The order for publication required mailing a copy of the summons to North Hanover, Mass.; the affidavit of mailing recited Hanover, Mass., and the affidavit of publication was made by the 'manager of the publisher' of the Nevada State Journal. Held: proof of service did not comply with Rev. Laws sec. 5032(3), which authorizes the affidavit of the publisher, his foreman or principal clerk, or other employee having knowledge thereof - the manager of the publisher is not among the persons specially authorized and the affidavit did not show knowledge of the publication. The mailing defect was cured: on the hearing the court properly permitted amendment of the affidavit to show the summons was actually addressed to North Hanover per the order (Herman v. Santee, 103 Cal. 519). Service, not proof of service, confers jurisdiction (Rev. Laws sec. 5034), so the judgment is not void unless there was actually no statutory service; but the required proof must be furnished before the court may find jurisdiction over the defendant, and entry of default and judgment on defective proof was error. Evidence that the wife knew of the action's pendency did not supply the statutory proof. Following 1 Freeman on Judgments (5th ed.) sec. 193, the husband is entitled to supply the statutory proof of publication if it can be done. Order reversed and a rehearing of the motion directed. Rehearing denied per curiam February 4, 1930.

In plain language

A husband obtained a default divorce in Nevada against his wife, who lived in Massachusetts and was served only by publication of the summons in a Reno newspaper plus a mailed copy. She later moved to set aside the default and the judgment, arguing the court never had jurisdiction because the proof of service was defective: the mailing affidavit said the summons was sent to 'Hanover, Mass.' when the court's order required 'North Hanover, Mass.,' and the newspaper affidavit of publication was signed by the 'manager of the publisher,' who is not one of the people the statute authorizes to make that affidavit. The trial court refused to set the judgment aside, and she appealed. The Nevada Supreme Court agreed the proof of service did not comply with the statute. The mailing problem was fixable and fixed - a later affidavit showed the summons actually went to North Hanover, and the court properly allowed the original affidavit to be amended. But the publication affidavit was made by an unauthorized person and did not show he had knowledge of the publication, so entering the default and judgment on that defective proof was error. The judgment was not automatically void, though: what gives a court jurisdiction is the service itself, not the paperwork proving it. The court therefore reversed the order and sent the matter back so the husband could supply proper statutory proof of publication if he could, with the motion to be reheard.