217 P. 590 | Nev. | 1923
Lead Opinion
About three years ago the respondents brought a suit in the district court of Douglas County against the appellant to recover damages for alleged negligence resulting in the death of one Charles F. Rickey. The complaint in that action set forth in detail the alleged acts of negligence on the part of the defendant in the action. Upon the filing of the complaint in that suit summons was issued, and, together with a copy of the complaint, was served upon the defendant. In due time the defendant appeared and filed its answer, denying the allegations of negligence, and affirmatively pleaded contributory negligence. A reply was filed, denying the allegations of contributory negligence. The complaint was attacked in no way. Upon the issues thus made the case came on for trial before a juiy. A general verdict was returned, and special findings were made
The present suit is one in equity to enjoin the plaintiffs in the original action from collecting the judgment in their favor. Upon the filing of the complaint in this suit a temporary injunction issued upon the ex parte application of the plaintiff. The defendants appeared and filed a general demurrer to the complaint and also made a motion to dissolve the injunction, upon the ground, among others, that the complaint alleges no facts entitling the plaintiff to injunctive relief. Upon the hearing of such demurrer and motion the court vacated the order theretofore issued and sustained the demurrer. Thereafter judgment was entered in favor of the defendants. The case is now before us on an appeal taken from such judgment.
While there are numerous errors assigned, they may be disposed of under two classifications: (1) That the judgment in the original action was in excess of the jurisdiction of the court, hence null and void. (2) That the trial court erred in refusing to call in an outside judge to preside at the hearing of the demurrer'and motion.
Counsel for appellant have filed an opening brief of thirty-six pages, wherein they have called our attention to over sixty authorities which they claim are in point. The complaint in the case is voluminous, but it consists
To sustain the contention of counsel our attention is directed to section 242, Black on Judgments (2d ed.) where it is said:
“Besides jurisdiction of the person of the defendant and of the general subject-matter of the action, it is necessary to the validity of a judgment that the court should have had jurisdiction of the precise question which its judgment assumes to decide, or of the particular remedy or relief which it assumes to grant. In other words, a judgment which passes upon matters entirely outside the issue raised in the record is so far invalid. * * * ”
Numerous authorities are cited in support of the rule thus stated. The rule invoked is elementary, and counsel might have found that it had been recognized in this jurisdiction. Estate of Foley, 24 Nev. 197, 51 Pac. 836, 52 Pac. 649. We do not believe this rule is questioned anywhere. The rule invoked being thus recognized, let us inquire wherein its application to the facts pleaded in the complaint would justify the contention that the trial court in the original action, by receiving the evidence in question, permitted the bringing into the case
The court was confined to the determination of these two issues, and competent evidence was admissible in proving or disproving both of them. In passing upon the competency of the evidence tendered, the court did not transcend the limits of its jurisdiction, and, if it erred, it erred only in the exercisé of jurisdiction, and no advantage could be taken thereof except on appeal. Daly v. Lahontan M. Co., 39 Nev. 14-29, 151 Pac. 514, 158 Pac. 285-287. It was aptly said in Tallman v. McCarty, 11 Was. 401:
“No order which a court is empowered under any circumstances, in the course of a proceeding over which it has jurisdiction, to make, can be treated as a nullity merely because it was made improvidently, or in a manner not warranted by law, or in the previous state of the case. The only question in such a case is: Had the court or tribunal the power, under any circumstances, to make the order or perform the act? If this be answered in the affirmative, then its decision upon those circumstances becomes final and conclusive, until reversed by a direct proceeding for that purpose.”
If any other doctrine than that which we have stated, which is as old as jurisprudence itself, were to control, there would be ho finality to litigation. Every other point presented, attacking the jurisdiction of the court in the damage suit, goes to some ruling in the original action, and is controlled' by the rule which we have stated; hence there is no necessity to state them seriatim and apply the principle enunciated. The query naturally suggests itself whether these proceedings would lie, even were there merit in the propositions urged upon our consideration, since the appellant had its remedy at law by appeal from the judgment from which it is now seeking relief. 15 R. C. L. 738, et seq.
It is suggested that the lower court erred in
The judgment is affirmed.
Concurrence Opinion
concurring:
This is a suit to enjoin the respondents from availing themselves of the benefit of a judgment rendered in their favor in an action at law brought to recover damages for the death of. their decedent, Charles F. Rickey, alleged to have been caused by the negligence of the Douglas Milling and Power Company, a Nevada corporation, in the erection, operation, and conduct of its electric-power lines in Douglas County. The corporation brought the case to this court on appeal from an order denying to it a new trial, and also from the judgment, based on the verdict and special findings of a jury, for the sum of $15,303. The appeal from said order was dismissed, on motion, because of the failure of the corporation to embody the errors based upon any ground for new trial by a statement or bill of exceptions, as required by the statute. Stats. 1915, p. 164. The appeal from the judgment was affirmed, because of no error appearing in the judgment roll. -A petition for rehearing was denied in an extended opinion. Rickey v. Douglas M. and P. Co., 45 Nev. 341, 204 Pac. 504, 205 Pac. 328.
Thereafter the Douglas Milling and Power Company brought this action in the court where the judgment was rendered, setting out and exhibiting with its complaint, and as a part thereof, all .the pleadings and exceptions taken by it in the course of the trial of the action at law. The complaint also embodies all the grievances of complainant against the decision of this court in
The first question to be disposed of is whether the judgment can be made the subject of review. It is the general rule that, when an appellate court has passed upon a record and upon a petition for rehearing, and the remittitur has gone down, its jurisdiction terminates, and the cause is beyond its reach. If, then, the supreme court is without power or authority to review its own judgment, a fortiori there can be no power or right to review or set aside such judgment in a collateral suit in equity in an inferior court. Armstrong v. Poole, 30 W. Va. 669, 5 S. E. 257. It would be an extraordinary law, indeed, and an unheard-of practice, fraught with incalculable mischief, to allow a judgment of a court of the last resort to be reviewed by the district court. Van-sickle v. Haines, 8 Nev. 164. Whether the rule be founded on principle or practice, it is absolute and inflexible. Public policy, if not necessity, requires that it should be strictly enforced, even in cases of individual hardship. Campbell v. Campbell, 22 Grat. (Va.) 649. If such were not the rule, it becomes pertinent to inquire when would litigation cease.
I do not say, that the supreme court is infallible, or that a case may not arise in which its judgment might be made the subject of review in a proper proceeding, as where the judgment of this court, in a case before it, was made upon a mistake of fact, or was procured by fraud, or where the judgment of the appellate court, affirming a judgment of the court a quo, is itself void, if the court a quo had no jurisdiction. But this case is by no means such a case. Here the judgment of affirmance by the supreme court is sought to be reviewed, upon the ground that the court improvidently erred,
The appellant makes the further contention that the judgment is invalid, because evidence was permitted to go to the jury upon an issue not made by the complaint, and therefore it is void. It appears that plaintiffs were allowed, over the objections and earnest protest of counsel for the defendant company, to introduce in evidence a franchise granted the Douglas Milling and Power Company in the year 1912 by the board of commissioners of Douglas County, pursuant to the statute of Nevada (section 2137, Revised Laws), to erect and maintain poles and wires along the public roads and highways and other public thoroughfares of Douglas County. The error, if it was error to admit the franchise in evidence, cannot be corrected in a court of equity. It is well settled that such courts are without power to enjoin the enforcement of a judgment at law because of erroneous rulings of the court in admitting or excluding particular evidence. 23 Cyc. 1004; 15 R. C. L., sec. 194, p. 739; 16 Am. & Eng. Ency.- Law (2d ed.) 389. Certainly it can neither be fairly nor reasonably contended that by the admission of the franchise the judgment passed upon matters outside of the issue of negligence.
All the other allegations of the complaint for equitable relief against the enforcement of the judgment are
The demurrer to the complaint was properly sustained.
Rehearing
On Petition for Rehearing
Rehearing denied.