Brooks v. Nevada Nickel Syndicate

53 P. 597, 24 Nev. 311

Opinion

By the Court,

Massey, J.:

This action was instituted by the respondent, a stockholder, for the benefit of all the stockholders of the National Nickel Company, a corporation, organized and existing under the laws of the State of Illinois, against the appellant, a corporation, organized and existing under the laws of the kingdom of Great Britain, for the purpose of setting aside a certain alleged conveyance made by the president and secretary of the National Nickel Company to the appellant, of certain mining claims in Churchill county, Nevada, which conveyance is alleged to have been made without authority. The National Nickel Company was made a party defendant to the action, but is not a party to this appeal. Summons was issued on the 2d day of October, 1896, delivered to the sheriff of Ormsby county, Nevada, on the 3d day of October, 1896, and returned by him on the same day, with a certificate of service to the effect that he had served the same on the defendants by personally delivering a true copy of the same, attached to a copy of the complaint, to Eugene Howell, secretary of state, at Ormsby county, the defendants having no agents in the state upon whom service could be made, who could be found in the said county. No appearance having been made, the default of the appellant was entered on the 17th day of November, 1896, and on the 16th day of December, 1896, decree was made as prayed for. On the 15th day of December, 1897, this appeal was taken from the judgment and decree. The respondent, upon a showing that before this appeal had been taken the appellant had appeared in the lower court, and asked that the judgment be vacated for certain specified reasons, and that subsequently, on January 3, 1897, the district court had sustained appellant’s motion and made an order vacating an€ annulling the judgment, from which order the respondent had appealed, asks us to dismiss this appeal. At the time the appeal was taken, a judgment was standing against the appellant, and the motion to set aside the same was undetermined. Our statute confers the right of appeal from a final- judgment, upon any party aggrieved, within one year after the rendition thereof, and power is conferred upon the district courts, under certain restrictions, to set aside and vacate judgments. The right of appeal can be exercised at any time within the statutory limitation before the judgment is set aside or vacated by the district court. The appellant can, under our practice-act, appeal from the judgment and prosecute such appeal in the appellate court, and at the same time prosecute a motion to vacate and set aside the judgment in the district court. These are separate remedies under the law, and the appellant may for one reason ask the court to vacate a judgment, and for an entirely different reason ask the appellate court to reverse or modify the same. If an appeal from the judgment operates as a vacation or suspension of the same, then such course would not be proper; but that the legislature intended the contrary is evident from those sections of the civil practice act regulating the method of stay of execution of judgment after appeal therefrom. (Gen. Stats. 3364-3367; Rogers v. Hatch, 8 Nev. 35.)

Questions analogous to the one under consideration have been decided by other courts under similar statutes regulating appeals from judgments, and proceedings and appeals from orders granting or denying new trials. The Supreme Court of California has held that the two modes of appeal are independent of each other, and that an appeal from the judgment does not depend upon a motion for a new trial, and may be taken without waiting for the determination of a motion for a new trial, and that even an affirmance of a judgment upon a direct appeal therefrom does not prevent the court below from setting aside the verdict or the findings. (Carpentier v. Williamson, 25 Cal. 168; Spanagel v. Dellinger, 38 Cal. 284; Towdy v. Ellis, 22 Cal. 659; McDonald v. McConkey, 27 Cal. 326; Rayner v. Jones, 90 Cal. 81; Naglee v. Spencer, 60 Cal. 10.)

This statutory rule is based upon sound reason. Should the appellant be required to await the determination of a motion to vacate the judgment, he might lose his right of appeal therefrom by expiration of time in which such appeal could be taken, and thereby his right to have reviewed any errors appearing in the judgment roll. Upon the showing made, and for the reasons given, the motion to dismiss the appeal will be denied.

The first objection made to the validity of the judgment, based upon defects appearing in the judgment roll, is that no summons was ever issued in the action — that the paper purporting to be a summons is void for the reason that it runs in the name of “ The People of the State of Nevada.” Section 13, article VI of the constitution requires that the style of all process shall be “ The State of Nevada.” Is a summons issued under our law a process within the meaning of the provision of said article?

Under our practice act, which has been in force since 1869, provision is made for the issuance of summons to be signed by the attorney for the plaintiff, or by the clerk, and, when issued by the clerk, requiring that it shall be under the seal of the court. The same act specifically defines the contents of the same. • There is nothing in the act requiring the summons to run in any particular form. It has never been treated as a process within the meaning of our constitution either by the legislature or the courts, and, while there is conflict of authority upon a similar question, under constitutions and statutes similar to our own, in other states, we are disposed to hold that a summons is not a process, within the meaning of our constitution. Upon this point we quote from a decision of the Supreme Court of Colorado, in which it says: “As to the first point raised — that the summons is such a process as may be issued in the name of the people of Colorado — we are strongly inclined to follow the conclusion of the Supreme Court of Florida in Gilmer v. Bird, 15 Fla. 411. In this case the identical question here presented is discussed at some length — that is, ‘ that the summons, as authorized by the code, is a “ process,” within the meaning of the constitutional provisions which require the style of all process to be the “State of Florida”;- that the summons had no such style; that this was essential to the validity of the judgment, there having been no appearance.’ And the court said: ‘ But is a notice given by an attorney of the institution of a suit, in a form similar to a summons, but not issuing out of a court, a “ process ” within the meaning of the constitution? Baron Comyn, in giving the definition of the term “ process,” says it imports the writs which issue out of any court to bring the party to answer, or for doing execution. There is no definition of “process,” given by any accepted authority, which implies that any writ or method by which a suit is commenced is necessarily “ process.” A party is entitled to notice and to a hearing under the constitution before he can be affected, but it is nowhere declared or required that that notice shall be only a writ issuing out of a court.’ ” (Comet Consolidated M. Co. v. Frost, 25 Pac. (Col.) 506; Hanna v. Russel, 12 Minn. 80; Bailey v. Williams, 6 Or. 71; Nichols v. The Plank Road Co., 4 G. Greene, 44.)

The appellant also claims that, under the provisions of the act approved February 25, 1889 (Stats. 1889, p. 47), requiring certain corporations named therein to appoint and keep agents upon whom service of summons can be had in this state, and providing that upon failure to make such appointments, service may be made upon the secretary of state, the .judgment is void, for the following reasons: First, that it does not appear from the judgment roll, that the appellant, a foreign corporation, owned any property or did any business within this state; second, that the judgment roll fails to show that the appellant had no agents within this state upon whom service of summons could have been made.

The first contention is sufficiently answered, if the allegations of the complaint are taken as true, by the fact that the appellant was the owner of the mining claims named in the alleged conveyance set up. If, as contended by appellant, the alleged conveyance is in fact a mortgage upon property, then it is sufficiently shown thereby that the appellant was loaning money upon property situated within this state, and such acts constitute “ doing business,” within the meaning of said statute.

The second claim of the appellant raises for the first time in this court the application of the act of 1889, supra. Under section 3050, General Statutes of 1885, the service of summons must be made by the sheriff of the county where the defendant is found, or by his deputy, or by any citizen of the United States over twenty-one years of age. When the service has been made by the sheriff or deputy, it must be returned, with a certificate or affidavit of its service, and of the service of the copy of the complaint. The succeeding section of the same act requires, among other matters, that, in case the suit be against a foreign corporation doing business in this state, service of summons may be made upon an agent, cashier, secretary, president, or other head thereof. Section 3052 of the same act provides that when the person on whom the service is made resides out of the state, or, being a corporation, cannot be served as provided in the preceding section, and the fact shall appear by affidavit to the satisfaction of the court or judge thereof, and in like manner certain other matters are shown, then an order shall be made for service of summons by publication. The method of procedure marked out by the provisions of these sections has been in force since 1869, and remained unchanged until the passage of the act of 1889, supra, giving an additional mode or manner of serving process upon foreign corporations as defined in that act. Under the provisions of the act of 1869, courts of this state could acquire jurisdiction over foreign corporations doing business in the state by following the statutory rules for service of summons by publication, where no agent or other officer was found in the state upon whom service could be made; but the power of the court, in cases of default, was limited, under well-settled rules, which require no citations in their support, to render judgments in rem. Under these statutes foreign corporations might come into the state, transact business, and commit wrongs against its citizens, for which the only remedy was a personal action for damages, and, before service could be made upon the agent or other officer named in the statute, such agent or officer could withdraw from the jurisdiction of the state, and leave the injured person practically without remedy. The act of 1889, construed with the provisions of the act of 1869, was evidently intended to cure this defect.

Without entering into a discussion as to the power of the legislature to pass the act of 1889, regard for the rights of property and person require that such act should be strictly complied with before the courts assume jurisdiction. The statute of 1889, under which service of summons was made in the case at bar, authorized such service upon the secretary of state in the event of the failure of the appellant to appoint and keep an agent within this state, upon whom such service could be made, and such facts should be affirmatively shown by the record. (Works’ Courts and Their Jurisdiction, p. 291; Miller v. Norfolk & W. B. Co., 41 Fed. Rep. 431; Jennings v. Crofton, 9 S. W. 406.)

The requirements of the act of 1889 are, in effect, that every foreign corporation doing business or owning property within this state shall appoint and keep in this state an agent upon whom all legal process may be served, and in case of their failure to comply with these requirements, then service of process may be made upon the secretary of state. Applying the strict letter of the rule to the case at bar, has such showing been made by the record as to confer jurisdiction over the appellant? The record shows that the appellant is a foreign corporation doing business in this state. It further shows, by the certificate of the return of the sheriff, that process was duly served upon the secretary of state. It further shows that there were no agents of the appellant, as required by the statute, within Ormsby county, and any attempt of the sheriff to show by his certificate that there were no agents of the appellant in any other of the thirteen counties of the state would be in excess of his power, under the statute authorizing his return. This last showing is not sufficient. The statute does not require that the appellant shall appoint or keep the agent in any particular county, and before the court could acquire jurisdiction over the appellant by the attempted service, the record should show that the appellant had not appointed any agent upon whom service could be made as required by the act, and that it had not kept such agent within the state. Suggestions have been made by counsel as to the manner in which the showing of these facts shall be made. The statute fails to prescribe any method of procedure, and, in the absence of any prescribed method, we can only suggest that all jurisdictional facts under this statute should be made to appear in the judgment roll.

Objections have also been made to the sufficiency of the complaint to support the judgment, but, as any such defects therein can be cured in the lower court by amendment, we do not deem it necessary to pass upon the same.

The judgment will be reversed.