14 Nev. 431 | Nev. | 1880
Lead Opinion
By the Court,
This is an application for a peremptory writ of mandamus. The substance of the petition is that the petitioner in April,
The respondent demurs, and answers at the same time. The answer, however, as well as the demurrer, admits all the allegations of the petition; and the new matter alleged on the part of the respondent was not proved, and is not relied on. The only question to be decided, therefore, is this: has a justice of the peaee jurisdiction of an action against a county for a sum less than three hundred dollars? For, if he has, this case falls clearly within the rule of Cavanaugh v. Wright, 2 Nev. 166, in which it was held, or at least assumed — and we have no doubt correctly — that if upon a mistaken view of the law the district court refuses to try a cause, on the ground that it has no jurisdiction, and it clearly appears, from the admitted facts, that it has jurisdiction, and that all preliminary conditions to its action have been complied with, and the cause is still pending, in such case, if there is no other plain, speedy, and adequate remedy, this court should issue its mandate to the district court, to hear and decide such cause on its merits.
The decision in Treadway v. Wright, 4 Nev. 119, does not overrule that in Cavanaugh v. Wright, and if it be true that the distinction which it attempts to draw between the two cases is without any substance or validity, what follows is that the latter and not the former decision is wrong.
Eeturning, then, to the only question in the case, we are satisfied that the district court erred in holding that justices of the peace have no jurisdiction of actions against counties.
It is conceded that without express authority from the legislature a county can not be sued, and that the right to maintain such suits can only be enjoyed upon the condi
It is, therefore, ordered that the peremptory writ issue as prayed for. •
Concurrence Opinion
concurring.:
There is, in my opinion, a wide, plain and clear distinction, in principle, between the cases of Cavanaugh v. Wright, 2 Nev. 166, and The State ex rel. Treadway v. Wright, 4 Nev. 119. In my judgment both cases are correct.
In every case 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 case, 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. As the district judge refused to act, I concur in the order directing the issuance of the writ.