
    THE STATE OF NEVADA on the Relation of H. J. CRUMMER, Relator, v. THE FOURTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Elko and the Honorable TAYLOR H. WINES, Judge Thereof, Respondents.
    No. 3718
    October 23, 1952.
    249 P.2d 226.
    See also 68 Nev. 527, 238 P.2d 1125.
    
      Hawkins, Rhodes and Hawkins, of Reno, for Relator.
    
      
      Woodburn, Forman & Woodburn, and Gordon R. Thompson, of Reno, and Orville R. Wilson, of Elko, for Respondents.
   OPINION

By the Court,

Merrill, J.:

Petitioner seeks a writ prohibiting further proceedings in an action before respondent court in which action petitioner is the defendant. The question presented is whether that court, by substituted service of process, has acquired personal jurisdiction over petitioner.

Two sections of our statutes are involved. Sec. 8582, N.C.L.1929, Supp. 1931-1941, provides in part as follows : “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 conceals himself to avoid the service of summons, and the fact shall appear, by affidavit, to the satisfaction of the court or judge thereof, * * * such court or judge may grant an order that the service be made by the publication of the summons.” Sec. 8583, N.C.L.1929, Supp. 1931-1941, provides in part as follows: “When publication is ordered, personal service of a copy of the summons and complaint, out of the state, shall be equivalent to completed service by publication * * *.”

The action involved is one in personam: one for breach of contract and money damages. Summons was duly issued. Affidavits were then filed for the purpose of establishing that defendant, although a domiciled resident of this state, had departed from the state and could not, therefore, be found within the state. An order based upon this ground was thereupon made by respondent court for service of process by publication of summons pursuant to sec. 8582, N.C.L. Subsequently summons was served upon the defendant personally within the state of California pursuant to sec. 8583, N.C.L. The defendant then moved to quash service of process, which motion was denied. Petition for writ of prohibition was then made to this court and an alternative writ issued.

In considering whether under the statutes of this state and the facts of this case, respondent court has acquired jurisdiction in personam over the petitioner, three general questions are presented:

(1) Whether this state has jurisdiction over the person of petitioner while absent from the state.

(2) If so, whether the state by statute has provided for the exercising of such jurisdiction through its courts.

(3) If so, whether respondent court has proceeded in a proper manner to exercise such jurisdiction. [Headnotel]

Question Number 1. It is conceded by petitioner that this question is no longer an issue but has been put to rest by the Supreme Court of the United States in Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 343, 85 L.Ed. 278. Since petitioner is domiciled within this state, this state has jurisdiction over his person even though he may be absent from the state. See also: Restatement of the Law, Conflict of Laws, sec. 79; Restatement of the Law, Judgments, sec. 16. The basis for such jurisdiction (a departure from the old “physical power to compel performance” theory; see: Dodd, Jurisdiction in Personal Actions, 23 Ill.L.Rev. 427) is clearly set forth in Milliken v. Meyer, supra, where it is stated: “As in case of the authority of the United States over its absent citizens * * * the authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. ‘Enjoyment of the privileges of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable’ from the various incidences of state citizenship. * * * The responsibilities of that citizenship arise out of the relationship to the state which domicile creates. * * * One such incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him.”

The existence and extent of the jurisdiction possessed by a state in such a case as this, then, are not dependent upon a statutory declaration and taking to itself of jurisdiction. Such jurisdiction is inherent and exists by virtue of the relationship between the state and its domiciliary.

Question No. 2. It is one thing to possess jurisdiction.' It is another to exercise it. Courts do not possess jurisdiction apart from and independent of the state. They are but instrumentalities through which the state itself exercises its own jurisdiction over a person. (In accord, see: 1 Beale, The Conflict of Laws, 326, sec. 74.1.) By constitution and statute the state has affirmatively conferred upon its various courts authority to exercise the jurisdiction of the state within specified limits. These limits, however, have to do with types of actions and proceedings and establish the competency of the courts as among themselves to deal with such specified matters. See: Restatement of the Law, Judgments, sec. 7. Within these bounds of competency and in the absence of other specified limitations, the state must be regarded as having conferred upon its courts general authority to exercise the whole of its jurisdiction.

In addition to authority, however, the courts must by statute be provided with the necessary machinery. Thus it is recognized that exercise of jurisdiction through its courts by a state over its domiciliaries (other than by personal service of process) cannot be had in the absence of express statutory provision. See: Restatement of the Law, Judgments, sec. 8; sec. 16, comment “b.” It should also be recognized, however, that while in connection with such statutory provision one sometimes sees reference to a state’s “conferring” jurisdiction upon its courts, this is not done by a formal declaration of bestowal or an express conferral of authority. The requirement of statute does not go to the possession of jurisdiction (or to the extent of the jurisdiction possessed) but to the manner and means of its exercise. The requirement is founded not in the need for bestowal of authority already generally conferred by constitution, but in the need for due process and for the express enlargement of the common-law method for service of process whiph was limited to personal service. As stated in Milliken v. Meyer, supra, the requirement is that “the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him.” As stated in the Restatement of the Law, Judgments, sec.. 8, comment “b,” a state in cases such as this, “may confer jurisdiction upon its courts by providing a method of service of process other than personal service.” (Emphasis added in both instances.)

Such a method has been provided in this state by secs. 8582 and 8583, N.C.L., quoted at the outset of this opinion. It is to the sufficiency of these provisions that petitioner’s principal contentions are directed.

Petitioner contends that sec. 8582 has already been construed by this court not to apply to actions in per-sonam, citing Nahas v. Nahas, 59 Nev. 220, 90 P.2d 223, 92 P.2d 718; Perry v. Edmonds, 59 Nev. 60, 84 P.2d 711; Pacific States Sec. Co. v. District Court, 48 Nev. 53, 226 P. 1106. These cases, however, deal with actions against nonresidents over whom the state itself possessed no jurisdiction. Since the purpose of the section is to provide for the exercising through its courts of such jurisdiction as the state itself possesses, it is obvious that the statute could not apply in such actions. While the language used in the opinions might be regarded as broad enough to cover all actions in personam, the scope of the decisions cannot be held to exceed that of the situations there considered.

Petitioner next contends that this section may not be construed to apply to cases such as this since the provision for publication of summons where the person to be served has departed from the state, does not expressly limit its application to residents; that its application, therefore, may cover nonresidents as well as residents; that it constitutes a single, inseverable provision which, to be valid, must be valid in its entirety as to all it purports to embrace; that if it be held applicable to actions in personam against residents, it must likewise be held applicable to such actions against nonresidents and thus be wholly invalid; that it should, therefore, be confined in its application to actions in rem and quasi in rem which may apply to both residents and nonresidents. In this connection our attention is drawn by comparison to the Wyoming statute under consideration in Milliken v. Meyer, supra. There the statute specified that service by publication might be had “in actions where the defendant, being a, resident of this state, has departed from the county of his residence * * W.C.S. 1920, sec. 5636. (Emphasis added.)

This, however, is to treat the section as an original bestowal of authority by the state upon its courts in which light, as we have indicated, we do not regard it. (Cf. Cella Commission Co. v. Bohlinger, 8 Cir., 147 F. 419, 421, 8 L.R.A., N.S., 537, cited by petitioner, where the statute in question not only provided a method of service of process upon all foreign corporations, but expressly stated without limitation that “such service shall be sufficient to give jurisdiction of the person * * *.”) Nowhere does our statute purport to define its jurisdictional limits nor characterize the jurisdiction which may be exercised under it. It does no more, and purports to do no more, than provide a method by which such jurisdiction as the state possesses may in certain cases be exercised through its courts. As indicated by our earlier quotation from Milliken v. Meyer, it is not statutory language which delineates the extent of the state’s jurisdiction over persons, the exercise of which by the courts has been generally authorized. Such jurisdictional limits are fixed by the relationship between the person served and the commanding state; by the existence or lack of existence of any personal duty to respond to the command of process.

Petitioner next contends that the method of substituted service provided by secs. 8582 and 8583, N.C.L., is not calculated to give adequate notice. It is pointed out that under sec. 8583 personal service is not made mandatory but is merely made the “equivalent” of completed service by publication. Upon the authority of McDonald v. Mabee, 243 U.S. 90, 37 S.Ct. 343, 61 L.Ed. 608, L.R.A. 1917F 458, it is contended that service by publication is insufficient. Therefore, it is argued, under our statutes personal service outside of the state must be equally insufficient.

We need not decide whether under McDonald v. Mabee service by publication would be adequate under the facts of the case before us. In our view Milliken v. Meyer disposes of petitioner’s contention. Under the Wyoming statute personal service was no more mandatory than under our statute. In the language of that opinion the test was whether the state had “provided and employed a reasonable method.” We need not quibble over the significance of the word “equivalent” as used by our legislature. We do not regard that choice of language as materially distinguishable from that of the Wyoming statute which provided: “In all cases where service may be made by publication * * * personal service * * * may be made out of the state.” W.C.S. 1920, sec. 5641. If petitioner’s contention were valid it might well have been said in Milliken v. Meyer that personal service was not available since that was not a case where service might be had by publication. The fact of the matter is that our statutes have provided personal service outside of the state as one method of giving notice and that that was the method employed in this case. It is stated in Milliken v. Meyer, “While outside the state [Meyer] was personally served in accordance with a statutory scheme which Wyoming had provided for such occasions. And in our view the machinery employed met all the requirements of due process.”

Question Number S. Petitioner here contends that the trial court’s order for publication of summons was improper for the reason that it was not sufficiently supported by affidavit. That order was made on January 31, 1952. The nearest identification of petitioner to that date was made on January 11, 1952, when one affiant stated that on that date he spoke with petitioner at his father’s ranch in California. Petitioner contends that this lapse of 20 days is fatal to the order since the nature or anticipated extent of petitioner’s absence from the state after January 11 is not shown,' nor whether his absence continued thereafter to January 31. The fact of his continuing domicil in Nevada is not in issue.

In a decision involving an earlier action (since dismissed) between the same parties now before respondent court, this court dealt with the same question here presented. State ex rel. Crummer v. District Court, 68 Nev. 527, 238 P.2d 1125, 1126. In that case we pointed out that the affidavit gave little assurance that “the defendant’s absence continued at the time the order was signed” and that “the facts establishing the pertinent circumstances should give reasonable assurance that those circumstances exist at the time the order is sought.”

The affidavits now before us do, we feel, give such assurance. They place petitioner at his father’s ranch in southern California on the occasion of four contacts made by one affiant: on May 19, 1950, twice in December 1951, and on January 11, 1952. They show that on June 26, 1951, petitioner testified upon deposition in answer to an inquiry as to his occupation, that at that time he was “looking after a ranch” in southern California. They show that that deposition was taken in this state upon stipulation of counsel that petitioner in so appearing would be exempt from service of process within this state. They show that upon one further occasion in July 1951, petitioner attempted to secure a stipulation of exemption from service of process in order that he might return to this state to attend the Reno rodeo: A showing was thus made of a continuing absence on the part of petitioner for over a year and a half, coupled, substantially, with a continuing presence and occupation at a given address in California. The circumstances indicate absence of any immediate intent to-return and tend affirmatively to establish a probability to the contrary.

The petition for writ of prohibition is denied with costs. The alternative writ is vacated and the proceedings dismissed.

Badt, C. J., and Eather, J., concur.

See also 69 Nev. 143, 242 P.2d 810, 69 Nev. 297, 251 P.2d 589.

See also 69 Nev. 143, 242 P.2d 810, 69 Nev. 294, 248 P.2d 1078.  