28 Nev. 265 | Nev. | 1905
By the Court,
Petitioner appealed to the first' judicial district court in and for Ormsby County from a judgment rendered against him and in favor of the plaintiff, Andrews, in the justice court of Ormsby County. The papers upon appeal were duly filed by the justice with the clerk of the district court. Thereafter, upon motion of counsel for the respondent, and upon a showing that the costs of the justice had not been paid, the district court made an order dismissing the appeal, basing its order on an erroneous construction of rule 37 of the district courts, which rule reads as follows: "When an appeal from the justice court to this court has been perfected, and the papers are not filed in this court within fifteen days from the day of filing the undertaking on appeal, this court, on the production of a certificate from the justice to the effect that an appeal has been taken and perfected, but the papers have not been ordered up, or the proper costs not paid, or upon showing that any other necessary steps have
Conceding that the district court erred in its ruling, was such error in excess of. jurisdiction, or within the power of this court to correct? Counsel for petitioner has cited four decisions from the Supreme Court of California sustaining his contention that the supreme court has such power, and also, to the same effect, the case of State v. Tinsman, 38 N. J. Law, 210. The latter case need not be considered, for the reason that the State of New Jersey has no constitutional provision like that of this state giving to district courts "final appellate jurisdiction in cases arising in justices’ courts.” (Const. Nev. art. VI, sec. 6.) The California decisions cited have all been expressly overruled in the case of Buckley v. Superior Court, 96 Cal. 119, 31 Pac. 8, in an able opinion by Garoutte, J:, to which Patterson, J., filed a strong dissenting opinion, which was concurred in by Beatty, C. J. We think, however, that the weight of reason and authority is in support of the prevailing opinion in the ease last cited, and is in consonance with an early decision of this court upon the precise question now presented. In the case of State ex rel. Treadway v. Wright, 4 Nev. 119, which was an original proceeding in mandamus to compel the .respondent, as judge of the first judicial district, to proceed with the trial of a cause appealed to his court from a justice’s court, and which he had dismissed for what he deemed to be an irregularity in the appeal, in passing upon the question, the court, by Lewis, J., said: "But how is this court to determine whether the. court below rightly dismissed the appeal or not? We have no means of ascertaining that fact, except by reviewing all the proceedings upon the motion to dismiss, and examining the evidence produced to sustain it. To do so, however, would be to review the judicial action of the lower court, precisely as if an appeal had been taken from the judgment of dismissal, which, cannot be done in a proceeding of this character. The case could not be brought to this court by appeal, because the sum involved is not sufficient to give it jurisdiction; but upon the application for this writ we are asked to review an order or judgment of the court below,
The case of State ex rel. Treadway v. Wright, supra, has been cited as authority by courts and text writers, as in the cases of People v. Garnett, 130 Ill. 343, 23 N. E. 331, and Ewing v. Cohen, 63 Tex. 485, and in High’s Ex. Leg. Rem. 173, 191, and the law, therein decided, followed. In the concurring opinion of Hawley, J., in the case of Floral Springs W. Co. v. Rives, 14 Nev. 435, after giving it as his opinion that the case of State ex rel. Treadway v. Wright was correctly decided, that distinguished jurist said: "In every ease where an appeal has been taken from the justice’s court it is the duty of the district judge, upon proper request, to make such disposition of the case as, in his judgment, the law and facts may warrant. If he proceeds and disposes of the ease, the writ of mandamus cannot be used to review his action; but, if he refuses, the writ will be issued to compel him to act.”
While this proceeding is in certiorari, and several of the decisions herein referred to were rendered in proceedings in mandamus, the reasoning set forth for denying the issuance of the writ applies with equal force to both procedures. In fact, the majority of courts that have granted relief against erroneous dismissals of appeals from inferior courts have held that mandamus was the proper remedy instead of certiorari. (See 13 Enc. of PI. & Prac. 537.) Hence an examination of the question presented has occasioned a review of authorities under both procedures. The reason for denying, power in the supreme court to correct, by original proceedings, errors committed by the district courts in erroneously dismissing appeals from justices’ courts, is concisely stated in the following extract from the opinion of the court in the case of Buckley v. Superior Court, supra: "The vital question was, did the superior court exceed its jurisdiction in dismissing the appeal? not, was the appeal erroneously dismissed? When an appeal is regularly taken, the court not
Por the reasons given, the writ is dismissed.
