Leonard v. Peacock

| Nev. | Jan 15, 1873

By the Court,

Whitman, C. J.:

‘In Peacock v. Leonard, ante, p. 81, it was held upon certiorari that the court of the justice where the suit was brought and the district court to which it was appealed had each and both exceeded their jurisdiction; and the judgment of the court was “that the proceedings had and judgment entered in the above entitled cause by the district court of the second judicial district in and for Washoe County, State of Nevada, be and the same are hereby annulled and set aside.”

By statute it is provided in such case that “a copy of the judgment, signed by the clerk, shall be transmitted to the inferior tribunal, board, or officer having the custody of the record or proceeding certified up ”; and that “ a copy of the judgment, signed by the clerk, entered upon or attached to the writ or return shall constitute the judgment roll.” * * Practice Act, Secs. Ill arid 115. Thus it will be seen that the judgment roll is preserved in the court granting the writ, as in a court of original jurisdiction in an ordinary action, and a copy only of the judgment is sent to the inferior tribunal.

Upon the rendition of the judgment the proceedings reviewed are presently affirmed, annulled, or modified as it may go. If annulled, there is no further positive or affirmative action to be taken by the inferior tribunal. As in the case of Leonard v. Peacock, the district court had • assumed appellate jurisdiction of the case: upon the judgment of this court, its action was simply erased. The copy of the judgment notified the world of the fact and nothing remained for the district court to do.

The record in this case, however, shows that the district court pronounced a judgment in terms similar to that of this court, and in addition ordered a writ of restitution issued and served pending the review to be set aside and adjudged void, with costs of the whole matter from justice’s court up and down against plaintiff. A notice was after ordered upon plaintiff 1 ‘ to show cause why a writ should not issue restoring the property (real estate) to defendant.” Plaintiff made showing of various matters, among others a claim of paramount title; and upon affidavits and arguments pro and con an order was finally made directing the sheriff to put plaintiff out of possession and place one Borden, defendant’s grantee or assignee as it is phrased, in quiet and peaceable possession of the disputed premises.

Erom the judgment and subsequent order this appeal is taken. There is no room for doubt as to the action of the district court. It is utterly void. In a case where as an appellate court — and only thus was it acting or professing to act — it had no jurisdiction of subject-matter or person, it assumed to do all that could have been done with full jurisdiction of both. It is objected, however, that no appeal lies, because the appellate jurisdiction of the district court in cases arising in justices’ courts is final. So it is provided by the constitution of this State, and that is conclusive of this case; for the record discloses no attempt on the part of the district court to exercise original jurisdiction; it simply exceeded its appellate jurisdiction. The proceedings were wholly in and about the case of Leonard v. Peacock, on appeal from a court of a justice, and so the district court acted. v

Oertiorari does not lie where there is an appeal. The writ was granted in the ease of Peacock v. Leonard ante, 84, for that reason; and in that case the conduct of the district court was, prior to the review, mutatis mutandis the same as after. The motion to dismiss must prevail. It is so ordered.