ZENOFF, District Judge.
We are confronted with the relevance of a defendant's "general appearance" subsequent to a default judgment and the propriety of a trial court "reinstating" this default judgment after first setting it aside.
These and related procedural issues are outgrowths of an automobile collision on July 22, 1961, between a car driven by defendant Michael Doyle and one driven by Bruce E. Jorgensen, on whose behalf as Guardian ad Litem, and individually, a complaint was filed by Bruce's father, Louis Jorgensen, on July 18, 1963. Named codefendant with Michael was his mother, Mrs. Willa Doyle, her liability resting solely upon fault imputed pursuant to NRS 483.300.
A single copy of the summons, addressed jointly to Willa and Michael, was delivered to the Doyle residence on July 19, 1963. The return certified the summons was personally served upon Willa. At the time, Michael was in the Armed Services and stationed outside Nevada.
No answer was filed by either Willa or Michael. On November 1, 1964, 17 months after service, plaintiff secured a default against both defendants. Judgment was entered on December 2, 1964. Nineteen days later, on December 21, the defendants, presenting a joint application and using the same counsel, moved the court to set aside and vacate the default judgment "upon the grounds, among others" that Michael was never legally served "and upon the further grounds that said Judgment against each of said Defendants should be vacated and set aside by reason of the mistake or inadvertence or surprise or excusable neglect of counsel for Defendants, within the meaning, terms and provisions of Nevada Rules of Civil Procedure 60(b) (1)."
The court, pursuant to oral argument, vacated the defaults as to both Willa and Michael "upon the following terms and conditions:
"a. That both defendants * * * forthwith file their answer to the Complaint on file.
"b. That Defendant, MICHAEL S. DOYLE waive any terms and provisions of the Soldiers and Sailors Relief Act that may apply to him in this case.
"d. Plaintiff's claim for automobile property damage in the sum of $1,800.00 be stricken from the Complaint, it having been settled between the insurance carriers involved."
The order vacating the defaults was entered on April 13, 1965. On April 15, Willa Doyle filed her answer to the merits. However, there was no response from Michael. On July 6, plaintiff moved for a reinstatement of the default on the basis of Michael's continued failure to answer. In opposition, defense counsel pleaded "mistake, inadvertence, surprise or excusable neglect" and attached a proposed answer on behalf of Michael. On August 2, the court "reinstated" the default judgment against both Willa and Michael "for the reason that defendant, MICHAEL S. DOYLE failed to comply with the Order of this Court issued on April 13, 1965, setting aside and vacating Default Judgment upon specific terms and conditions."
From this reinstatement, defendants appeal, claiming that Michael still has not been properly served.
1. We first note that the parties have proceeded on the presumption that Michael was not properly served because of his absence in the Armed Services. We disagree. NRCP 4(d) (6) provides that service may be made "to the defendant personally, or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein * * *." Authorities split as to whether an abode statute allows personal service at the civilian residence of a defendant in the Armed Service. 46 A.L.R. 2d 1239-1245 (1954). However, the federal courts have adopted a broad construction, viewing the statute as looking to a defendant's domicile. Karlsson v. Rabinowitz, 318 F.2d 666 (4th Cir.1963); McFadden v. Shore, 60 F.Supp. 8 (E.D. Pa. 1945). The notes of the Advisory Committee formulating the Nevada Rules of Civil Procedure indicate an intent to emulate the federal practice in this area. As to NRCP 4(d), the Advisory Committee said, "[t]he provision for personal service upon an individual is broadened by adopting the provision for leaving copies as under federal practice."
Service upon Michael, however, still was ineffective in that two defendants were involved but only one copy of a summons
2. Without proper service, the judgment against Michael was void. Thatcher v. Justice Court, 46 Nev. 133, 207 P. 1105 (1922); Martin v. Justice Court, 44 Nev. 140, 190 P. 977 (1920). Michael could have moved to set aside the judgment pursuant to NRCP 60 (b) (3);
3. Parenthetically, a more difficult question is whether such a waiver after judgment also may be applied retroactively so as to cure initial defects and render proper an otherwise void judgment. The authorities differ. 6 C.J.S., Appearances § 20, p. 61. Nevada has followed the minority position and refused to retroactively apply general appearances after judgment. Nevada Douglass Gold Mines v. District Court, 51 Nev. 206, 212, 273 P. 659 (1929); Perry v. Edmonds, 59 Nev. 60, 66, 84 P.2d 711 (1938); Ivaldy v. Ivaldy, 157 Neb. 204, 59 N.W.2d 373, 377-378 (1953). We question the logic of distinguishing between general appearances before and after judgment.
4. As to the "conditions" attached to the setting aside of the default, Rule 60(b) provides that "[o]n motion and upon such terms as are just,
The court, however, based the second default upon Michael's failure to comply with the conditions of the earlier setting aside. Since at least one of these conditions was improper, and thus invalid, such a reinstatement of the first default was equally erroneous.
5. Michael's answer now is before the court.
Reversed and remanded in accordance with the holdings herein.
THOMPSON, J., and WINES, D.J., concur.
TAYLOR H. WINES, District Justice, was designated to sit in the place of Judge Milton B. Badt, Deceased.