31 P. 434 | Nev. | 1892
The facts are stated in the opinion. This action was brought under the statute of 1889, p. 107, to determine the priority of rights to the use of the water of the Carson river. A motion by some of the defendants to set aside the notice of the action was sustained by the court, whereupon the petitioner moved to dismiss the cause; this motion was granted, and judgment entered for the defendants for costs of suit, amounting to two hundred dollars and twenty-five cents. A motion by the petitioner to retax the costs was partly overruled, and from this order the appeal is taken.
The first question which presents itself is whether this court has jurisdiction of the appeal, the amount involved being less than three hundred dollars.
It is admitted that the case, as brought in the district court, is one that this court could have had jurisdiction of upon appeal, had it not been dismissed by the petitioner; but it is contended, as we understand the matter, that this dismissal ended *328 the case as such; that if before such dismissal it had been a case in equity, after, it became a mere money demand for less than three hundred dollars. But there does not seem to be any sufficient reason for supposing that the dismissal had the effect of so entirely separating the proceedings. The "case" still existed for all proper and necessary purposes; if an execution were issued, it would certainly be in that case, and the motion to retax the costs was as much a part of the case as was the filing of the complaint or the order for judgment.
A case is defined to be an action, suit, or proceeding. It embraces everything from the filing of the complaint to the entry of satisfaction of the judgment. They are all steps in, or parts of, the same case. It being admitted that this court has jurisdiction of the "case," this necessarily means that it has jurisdiction of every part of it, in so far at least as the legislature has made provision for the parts being brought up on appeal. The statute provides that there may be an appeal from certain preliminary orders, from the final judgment, or from any special order made after judgment. The right to appeal from such special order is of equal rank and dignity with the right to appeal from the judgment. One right in no manner depends upon the other. It is the case as made in the district court, and not the amount involved in the appeal, that gives the right to appeal. This was so held in regard to a judgment inKlein v. Allenbach,
The case being a proper one, the time and mariner of taking the appeal become a mere matter of statutory regulation. Whether the appeal may be from a part of the case at a time, or only from the whole of it at once, is for the legislature alone to determine. (Burbank v. Rivers,
In California it was at one time held that there could be no appeal from an order striking out a statement on motion for a new trial, but this was overruled in Calderwood
v. Peyser,
*330
29 Pac. Rep. 332), as well as in our own state (Marshall v. GoldenFleece, etc., Co.,
Mr. Hayne, in his work on New Trials (page 584), says: "It results that any order which is subsequent in point of time to the judgment is a `special order made after final judgment,' and is appealable. * * * So that the rule is thatany order subsequent in point of time to the entry of judgment is appealable." This, indeed, is the plain language of the statute, and there seems to be no reason for attaching to the right of appeal conditions that are not found therein.
What we have already said will sufficiently indicate our views upon the objection that there can be no appeal from the order re-taxing the costs of an action, and that the question of costs can only be considered upon an appeal from the judgment. This was at one time the rule in California, under a similar statute, but it is now held there, as we think correctly, that where the question of costs arises subsequently to the entry of judgment, an appeal from the order is the correct and only remedy. (Hayne, New Trials App. Sec. 197.)
In the matter of costs, the only question presented upon the appeal is that concerning the amount properly chargeable for verifying the answers and cost bills in the case, of which a number were filed by the different defendants. The charge made is one dollar and twenty-five cents in each instance — twenty-five cents for administering the oath and one dollar for attaching a jurat to the affidavit, upon the theory that the jurat constitutes a certificate, for which that amount is allowed by the statute of 1887 (page 126), regulating the fees and compensation of the officers of Ormsby county.
It is first contended that this act is unconstitutional, upon the ground that it is special legislation, applicable only to Ormsby county, and, as such, in conflict with section 20 of article 4 of the constitution as it stood prior to the amendment adopted in 1889. It becomes necessary to pass upon this question, because that act allows larger fees for these services than are allowed by the general statutes, which, if this act is unconstitutional, would govern their amount. If the statute was in conflict with the constitution as it stood at the time of the passage of the law, the subsequent change in the constitution authorizing such legislation would not validate it. (State v.Tufly,
We are also of the opinion that a jurat is not a certificate within the meaning of the law fixing the fees of officers. What the legislature meant by the word certificate, as used in this act, is, of course, the real point for decision here. It is not sufficient that in some senses a jurat may be a certificate, if that is not the sense in which it is used here. So far as that is concerned, it may be said that any writing attesting a fact is a certificate of that fact — for intance, filing a paper is usually defined as the placing of it in its proper place among the files, and the indorsement made upon it is but the evidence — the certificate — that it has been so placed. But while the indorsement certifies to the fact of the tiling, it certainly would not be called a certificate, within the meaning of this act. In the same sense the jurat attests or certifies to the fact that the oath has been administered. But this is not the usual meaning of the word certificate. We are of the opinion that as used in this act, the legislature intended a formal certification of some fact, such as the certificate attached to a judgment roll, to a certified copy of a record or paper, and similar instances. This is the usual meaning of the word, and in the absence of any reason to the contrary, must be presumed to be the sense in which it is used here. "In the construction of statutes a word which has two significations should ordinarily receive that meaning which is generally given to it in the community." (Suth. Stat. Const. Sec. 248.) "Where words are used generally, the natural conclusion is that the popular meaning is the one intended." (Ormsby Co. v. State,
No fee being provided for the jurat, where the oath is administered by a notary public or the county clerk of Ormsby county, these officers are required to perform that service without compensation; and it follows that one dollar of the charge made for the administration and certification of each oath should have been struck out of the cost bills and disallowed.
The order appealed from is reversed.
*332MURPHY, J., expresses no opinion.