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Gassett v. Snappy Car Rental11/30/1995
ssett. The judgment was recorded with the Clark County Recorder on September 2, 1988. The judgment ordered Gassett to pay Snappy $7,962.56 for the deficiency on the car, along with $1,721.36 in interest, $159.00 for the costs of the suit, and $1,250.00 in attorney's fees. Gassett first learned of the lawsuit on December 22, 1993. While Gassett was trying to buy a house, the title company found the judgment on her credit history. On January 11, 1994, Gassett filed a motion for order to set aside judgment and to quash service. Gassett argued that the district court should set aside the default judgment because it was obtained through extrinsic fraud and because Snappy did not use due diligence in finding Gassett. Gassett, by sworn affidavit, stated that she had lived in Las Vegas since 1981 and that her address and telephone number had always been listed in the telephone book. In her motion, Gassett also claimed that service was ineffective. Gassett further stated in her affidavit that she never received any notice of any kind regarding the suit. On March 15, 1994, the district court issued its order denying Gassett's motion to set aside judgment
[111 Nev. 1416, Page 1419]
and to quash service. In so doing, the district court found that Snappy had exercised due diligence in attempting to locate Gassett and that Snappy had committed no extrinsic fraud. Additionally, the district court found that neither Gassett nor her counsel had made an appearance in the action pursuant to NRCP 55(b). The district court also found that Gassett had made a general appearance by filing her motion to set aside the judgment, thereby waiving any complaints about improper service. Gassett now appeals the district court's denial of her motion.
DISCUSSION
The district court abused its discretion in refusing to set aside the default judgment.
In Christy v. Carlisle, 94 Nev. 651, 654, 584 P.2d 687, 689 (1978), this court stated: "It is our underlying policy to have each case decided upon its merits. With this in mind, we approve the observation . . . that a default judgment normally must be viewed as available only when the adversary process has been halted because of an essentially unresponsive party." (Citation omitted.) This court has also stated "that a trial court's exercise of discretion in granting or denying a motion to set aside a default judgment will not be disturbed on appeal absent an abuse of discretion." Minton v. Roliff, 86 Nev. 478, 481, 471 P.2d 209, 210 (1970) (citations omitted). The overriding issue in the instant case is whether the district court abused its discretion in refusing to set aside the default judgment against Gassett.
NRCP 4(e)(1)(i) allows service by publication when the person to be served resides out of state or after due diligence cannot be found within the state. Gassett argues that Snappy did not exercise due diligence in trying to serve her and that the service by publication was ineffective. We agree. The defective service rendered the district court's personal jurisdiction over Gassett invalid and the judgment against her void. For a judgment to be void, there must be a defect in the court's authority to enter judgment through either lack of personal jurisdiction or jurisdiction over subject matter in the suit. Puphal v. Puphal, 669 P.2d 191 (Idaho 1983). In Price v. Dunn, 106 Nev. 100, 787 P.2d 785 (1990), the plaintiff attempted to discover the defendant's address through the telephone book, inquiries at the power company, and a conversation with the defendant's stepmother. This court concluded that although the plaintiff complied technically with NRCP 4(e)(1)(i), "her actual efforts, as
[111 Nev. 1416, Page 14
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