 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Gassett v. Snappy Car Rental11/30/1995
20]
a matter of law, fall short of the due diligence requirement to the extent of depriving [the defendant] of his fundamental right to due process." Price, 106 Nev. at 103, 787 P.2d at 787. Additionally, the court stated that " here other reasonable methods exist for locating the whereabouts of a defendant, plaintiff should exercise those methods." Id. at 103, 787 P.2d at 787; see also McNair v. Rivera, 110 Nev. 463, 874 P.2d 1240 (1994) (concluding that one attempt to serve defendant during a six month extension of time for service was not sufficient for a showing of due diligence).
Snappy's attempt at service consisted of one visit to an old address and service by publication. No attempt was made to locate Gassett through her attorney even though Snappy knew Gassett had been represented by Bernstein. Based on Price, we conclude that Snappy's attempt at service fails to demonstrate due diligence. Therefore, the default judgment was void due to a failure of jurisdiction. Snappy argues that the defective service on Gassett is irrelevant because she waived her right to complain of such jurisdictional issues. In its order, the district court found that Gassett made a general appearance through her motion to set aside the default judgment. In her motion, Snappy claims, Gassett requested relief additional to that necessary to protect her from defective service, thus waiving her right to complain about the defect. The district court relied on Doyle v. Jorgensen, 82 Nev. 196, 414 P.2d 707 (l966). In Doyle, this court assessed whether a defendant who was not properly served prior to an entry of default made a general appearance when he sought relief for the improper service and also sought relief on the basis of mistake, inadvertence, surprise, or excusable neglect. This court concluded that
ithout proper service, the judgment against [the defendant] was void. [The defendant] could have moved to set aside the judgment pursuant to NRCP 60(b)(3); alternatively, he could have sought a setting aside combined with permission to answer to the merits pursuant to NRCP 60(c). [The defendant], however, did not confine his pleadings to these jurisdictional matters of defective service or void judgment. Rather, he also sought relief on the basis of "mistake, inadvertence, surprise, or excusable neglect" as provided by NRCP 60(b)(1). [The defendant] therefore made a general appearance.
Id. at 201, 414 P.2d at 710 (citations omitted; footnotes omitted).
[111 Nev. 1416, Page 1421]
In dicta, the court in Doyle considered whether a waiver such as Snappy claims was made by Gassett may be applied retroactively to cure initial defects in service and render proper an otherwise void judgment. Id. at 201-02, 414 P.2d at 710. The court suggested that in some cases, a general appearance could apply retroactively to cure initial defects.
here are certain minescule irregularities in procedure which will be overlooked regardless . . . if . . . such an overlooking will best serve the ends of justice. In contrast, other procedural errors are deemed so prejudicial that they are never overlooked, but instead are said to render the proceeding void. This does not mean, however, that these defects cannot be waived . . . .
Id. at 202-03, 414 P.2d 710-11 (citations omitted). We now hold that the filing of a motion to set aside a void judgment previously entered against the movant shall not constitute a general appearance. See, e.g., Dobson v. Dobson, 108 Nev. 346, 349, 830 P.2d 1336, 1338 (1992). We will no longer allow a retroactive application such as this to make an otherwise void judgment valid. To the extent that this is contrary to Doyle, we now
Page 1 2 3 4 Nevada Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|