Which summons would I use for a divorce or anotification of service when one party has been missing?
Full Question:
Which summons would I use for a divorce or anotification of service when one party has been missing for the last 8 years?
10/17/2007 |
Category: Divorce |
State: Nevada |
#10443
Answer:
The applicable Nevada statute is as follows:
Rule 4. Process.
(a) Summons: Issuance. Upon the filing of the complaint, the clerk
shall forthwith issue a summons and deliver it to the plaintiff or to the
plaintiff's attorney, who shall be responsible for service of the summons
and a copy of the complaint. Upon request of the plaintiff, separate or
additional summons shall issue against any defendants.
(b) Same: Form. The summons shall be signed by the clerk, be under the
seal of the court, contain the name of the court and county and the names
of the parties, be directed to the defendant, state the name and address
of the plaintiff's attorney, if any, otherwise the plaintiff's address,
and the time within which the defendant must appear and defend, and shall
notify the defendant that failure to do so will result in a judgment by
default against the defendant for the relief demanded in the complaint.
When service of the summons is made by publication, the summons shall, in
addition to any special statutory requirements, also contain a brief
statement of the object of the action substantially as follows: "This
action is brought to recover a judgment dissolving the contract of
marriage (or bonds of matrimony) existing between you and the plaintiff,"
or "foreclosing the mortgage of plaintiff upon the land (or other
property) described in complaint," or as the case may be.
(c) By whom served. Process shall be served by the sheriff of the
county where the defendant is found, or by a deputy, or by any person who
is not a party and who is over 18 years of age, except that a subpoena
may be served as provided in Rule 45; where the service of process is
made outside of the United States, after an order of publication, it may
be served either by any person who is not a party and who is over 18
years of age or by any resident of the country, territory, colony or
province, who is not a party and who is over 18 years of age.
(d) Summons: Personal service. The summons and complaint shall be
served together. The plaintiff shall furnish the person making service
with such copies as are necessary. Service shall be made by delivering a
copy of the summons attached to a copy of the complaint as follows:
(1) Service upon Nevada corporation. If the suit is against a
corporation formed under the laws of this state; to the president or
other head of the corporation, secretary, cashier, managing agent, or
resident agent thereof; provided, when for any reason service cannot be
had in the manner herein-above provided, then service may be made upon
such corporation by delivering to the secretary of state, or the deputy
secretary of state, a copy of said summons attached to a copy of the
complaint, and by posting a copy of said process in the office of the
clerk of the court in which such action is brought or pending; defendant
shall have 20 days after such service and posting in which to appear and
answer; provided, however, that before such service shall be authorized,
plaintiff shall make or cause to be made and filed in such cause an
affidavit setting forth the facts showing that personal service on or
notice to the officers, managing agent or resident agent of said
corporation cannot be had within the state; and provided further, that if
it shall appear from such affidavit that there is a last known address of
a known officer of said corporation outside of the state, plaintiff
shall, in addition to and after such service upon the secretary of state
and posting, mail or cause to be mailed to such known officer at such
address by registered mail, a copy of the summons and a copy of the
complaint, and in all such cases defendant shall have 20 days from the
date of such mailing within which to answer or plead.
(2) Service upon foreign corporation or nonresident entity. If the suit
is against a foreign corporation, or a nonresident partnership,
joint-stock company or association, doing business and having a managing
or business agent, cashier, or secretary within the state; to such
agent, cashier, or secretary or to an agent designated for service of
process as required by law; or in the event no such agent is designated,
to the secretary of state or the deputy secretary of state, as provided
by law.
(3) Service upon minors. If against a minor, under the age of 14
years, residing within this state, to such minor, personally, and also to
the minor's father, mother, or guardian; or if there be none within this
state; then to any person having the care or control of such minor, or
with whom the minor resides, or in whose service the minor is employed.
(4) Service upon incompetent persons. If against a person residing
within this state who has been judicially declared to be of unsound
mind, or incapable of conducting his or her own affairs, and for whom a
guardian has been appointed, to such person and also to his or her
guardian.
(5) Service upon local governments. If against a county, city, or
town, to the chairperson of the board of commissioners, president of the
council or trustees, mayor of the city, or other head of the legislative
department thereof.
(6) Service upon individuals. In all other cases to the defendant
personally, or by leaving copies thereof at the defendant's dwelling house
or usual place of abode with some person of suitable age and discretion
then residing therein, or by delivering a copy of the summons and
complaint to an agent authorized by appointment or by law to receive
service of process.
(e) Same: Other service.
(1) Service by Publication.
(i) General. In addition to methods of personal service, when the
person on whom service is to be made resides out of the state, or has
departed from the state, or cannot, after due diligence, be found within
the state, or by concealment seeks to avoid the service of summons, and
the fact shall appear, by affidavit, to the satisfaction of the court or
judge thereof, and it shall appear, either by affidavit or by a verified
complaint on file, that a cause of action exists against the defendant in
respect to whom the service is to be made, and that the defendant is a
necessary or proper party to the action, such court or judge may grant an
order that the service be made by the publication of summons.
Provided, when said affidavit is based on the fact that the party on
whom service is to be made resides out of the state, and the present
address of the party is unknown, it shall be a sufficient showing of such
fact if the affiant shall state generally in such affidavit that at a
previous time such person resided out of this state in a certain place
(naming the place and stating the latest date known to affiant when such
party so resided there); that such place is the last place in which such
party resided to the knowledge of affiant; that such party no longer
resides at such place; that affiant does not know the present place of
residence of such party or where such party can be found; and that
affiant does not know and has never been informed and has no reason to
believe that such party now resides in this state; and, in such case, it
shall be presumed that such party still resides and remains out of the
state, and such affidavit shall be deemed to be a sufficient showing of
due diligence to find the defendant. This rule shall apply to all manner
of civil actions, including those for divorce.
(ii) Property. In any action which relates to, or the subject of which
is, real or personal property in this state in which such person
defendant or corporation defendant has or claims a lien or interest,
actual or contingent, therein, or in which the relief demanded consists
wholly or in part of excluding such person or corporation from any
interest therein, and the said defendant resides out of the state or has
departed from the state, or cannot after due diligence be found within
the state, or by concealment seeks to avoid the service of summons, the
judge or justice may make an order that the service be made by the
publication of summons; said service by publication shall be made in the
same manner as now provided in all cases of service by publication.
(iii) Publication. The order shall direct the publication to be made in
a newspaper, published in the State of Nevada, to be designated by the
court or judge thereof, for a period of 4 weeks, and at least once a week
during said time. In addition to in-state publication, where the present
residence of the defendant is unknown the order may also direct that
publication be made in a newspaper published outside the State of Nevada
whenever the court is of the opinion that such publication is necessary
to give notice that is reasonably calculated to give a defendant actual
notice of the proceedings. In case of publication, where the residence of
a nonresident or absent defendant is known, the court or judge shall also
direct a copy of the summons and complaint to be deposited in the post
office, directed to the person to be served at the person's place of
residence. The service of summons shall be deemed complete in cases of
publication at the expiration of 4 weeks from the first publication, and
in cases when a deposit of a copy of the summons and complaint in the
post office is also required, at the expiration of 4 weeks from such
deposit.
(2) Personal Service Outside the State. Personal service of summons
upon a party outside this state may be made by delivering a copy of the
summons, together with a copy of the complaint, to the party served in
the manner provided by statute or rule of court for service upon a party
of like kind within this state. The methods of service are cumulative,
and may be utilized with, after, or independently of, other methods of
service.
(3) Statutory Service. Whenever a statute provides for service, service
may be made under the circumstances and in the manner prescribed by the
statute.
(f) Territorial limits of effective service. All process, including
subpoenas, may be served anywhere within the territorial limits of the
State and, when a statute or rule so provides, beyond the territorial
limit of the state. A voluntary appearance of the defendant shall be
equivalent to personal service of process upon the defendant in this
State.
(g) Return. The person serving the process shall make proof of service
thereof to the court promptly and in any event within the time during
which the person served must respond to the process. Proof of service
shall be as follows:
(1) If served by the sheriff or deputy, the affidavit or certificate of
such sheriff or deputy; or
(2) If by any other person, the affidavit thereof; or
(3) In case of publication, the affidavit of the publisher, foreman or
principal clerk, or other employee having knowledge thereof, showing the
same, and an affidavit of a deposit of a copy of the summons in the post
office, if the same shall have been deposited; or
(4) The written admission of the defendant.
In case of service otherwise than by publication, the certificate or
affidavit shall state the date, place and manner of service. Failure to
make proof of service shall not affect the validity of the service.
(h) Amendment. At any time in its discretion and upon such terms as it
deems just, the court may allow any process or proof of service thereof
to be amended, unless it clearly appears that material prejudice would
result to the substantial rights of the party against whom the process
issued.
(i) Summons: Time Limit for Service. If a service of the summons and
complaint is not made upon a defendant within 120 days after the filing
of the complaint, the action shall be dismissed as to that defendant
without prejudice upon the court's own initiative with notice to such
party or upon motion, unless the party on whose behalf such service was
required files a motion to enlarge the time for service and shows good
cause why such service was not made within that period. If the party on
whose behalf such service was required fails to file a motion to enlarge
the time for service before the 120-day service period expires, the court
shall take that failure into consideration in determining good cause for
an extension of time. Upon a showing of good cause, the court shall
extend the time for service and set a reasonable date by which service
should be made.