Martin v. District Court of the First District

13 Nev. 85 | Nev. | 1878

By the Court,

Beatty, J.:

The petitioners commenced an action in a justice’s court of Storey county, by filing an account against “Irving, Mc.Kay & Co.,” without disclosing the names of the individuals composing the firm. The summons thereupon issued was directed to “Irving, McKay & Co.,” and according to the constable’s return, was served on “the defendants” personally, in the township where the action was pending. The defendants having failed to appear, judgment was entered upon their default. Nearly a month thereafter, J. Gr. Irving and Daniel McKay appeared in the justice’s court for the sole purpose of moving that the judgment be set aside. Their motion being overruled, they appealed to the district court, where it was renewed and granted, upon the grounds that the complaint wyas defective in form and substance, and that no legal summons had been issued or served.

We think the district- judge was in error in so holding. The sufficiency of pleadings in justices’ courts is not to be tested by the rules that are applied in the higher courts. The statute makes the copy of an account a sufficient complaint in justices’courts. (C. L., sections 1575 and 1595.) It is allowed to import allegations that must be expressly made in similar actions commenced in the district court. An account in the following form, “Daniel McKay to Louis Eeusier, Dr., March 1,1878, to 50 sacks of flour at $2 50— $125,” would be equivalent, as a complaint in a justices’ court, to the allegation that on the first day of March, 1878, Louis Feusier had sold and delivered to Daniel McKay, at his request, fifty sacks of flour reasonably worth one hundred and twenty-five dollars, and that the whole of that sum was at the date of the filing of the account due and unpaid. In other words, formal and precise pleading is dispensed with in those courts, and in an action upon an account everything is deemed to be alleged which can be reasonably inferred from the face of the paper. An account against “Irving, McKay & Co.” just as fully imports the allegation that two or more persons are doing business under the firm name of Irving, McKay & Go., as that goods reasonably worth the amount charged were sold and delivered at their request.

Where two or more persons are doing business under a common name, whether it comprises the names of such persons or not, they may be sued by their common name (C. L., sec. 1658), and in such case the individual names need not be disclosed, the very object of the statute being to dispense with the necessity of ascertaining the names of the members of the firm. Jurisdiction is acquired by serving the summons upon any one or more of the associates, but the judgment binds only their joint property, unless on the trial, the names of the associates are shown, in which case judgment may be rendered against the individuals composing the company. (C. L., 1673; Gillig, Mott & Co. v. Lake Bigler Road Co., 2 Nev. 214)

It may be conceded that in an action under these provisions, in the district court, it would be necessary to allege that two or more persons were doing business under the firm name set out in the title of the complaint, but it does not follow that such express allegations are necessary in justices’, courts. It is sufficient there if the facts can be inferred from the form of the account. This disposes of the objections to the complaint. The objection to the summons is, that it was not directed to the individual defendants by their proper names. We think it was properly directed to the defendants by their common name. The object of the statute, as we have said, was to enable the plaintiff to commence his suit without being under the necessity of first ascertaining the names of the several defendants, an object which would be completely frustrated by requiring the names to be ascertained before the issuance of summons. The name of the firm — which alone is to be bound, unless the names of the associates are proved at the trial — is known, and to that name the summons should be directed. (C. L., sec. 1577.) When it is served, the person upon whom it is served knows whether or not he is a member of the firm or company named. If he is not, he may safely disregard it; but if he is, he must answer, or take the consequences. In this case,' if J. G. Irving and Daniel McKay were not members of a company doing business under the firm name of Irving, McKay & Oo., the judgment did not concern them; if they were members of such a company, it was by their own default that the judgment was entered, and they have neither substantial nor technical grounds of complaint. Something has been said, it is true, about the insufficiency of the constable’s return of service, but it is not denied, that service was really made, and if the original return was defective it was cured by the affidavit subsequently filed. It is the service that gives jurisdiction; if the return is insufficient it may be amended in conformity with the facts.

But the important question in this case is not whether the district court erred in reversing and setting aside the judgment of the justice’s court, but whether it exceeded its jurisdiction. The proceeding is by certiorari, and if the district court had the power on appeal to hear and determine the question whether the default of Irving, McKay & Co. had been improperly entered, then its order, no matter how erroneous, must stand.

We think, however, that the district court had no jurisdiction by appeal in this case. The judgment was entered upon the default of the defendants, and there was no issue of law or fact to be tried. All the district court can do in a case appealed from a justice’s court is to try it anew (C. L., 1643), and if no sort of issue has been made or tried in the justice’s court, there is nothing to be tried anew. (10 Cal. 19; 11 Id. 328.) These decisions were approved by Judge Brosnan (1 Nev. 96), and his decision has only been so far qualified as to hold that an appeal lies to this court from a judgment by default in the district court upon the question whether the default has been properly entered. (3 Nev. 385.) This is correct, no doubt, because this court, on appeal from a judgment, may review any question affecting its correctness or validity which can be raised upon the record.

But on appeal to the district court the case is different. All the district court can do is to retry issues of law or fact that have been made in the justice’s court. If the defendant, by making the default, has failed to raise any sort of issue in the court of original jurisdiction, he will not be permitted to raise sucli issues for tbe first time in tbe appellate court. He cannot be allowed at his option to convert a court of appellate into a court of original jurisdiction.

If tbe defendant, in an action commenced in justice’s court, thinks tbe complaint states no cause of action, be may object to it on that ground (C. L., 1597), and if be chooses be may stand upon that issue and appeal upon it, but if be does, it will be tbe only issue triable in tbe district court. If be wishes to make an issue of fact, be must make it in tbe justice’s court, or be cannot have it tried in tbe district court.

It is contended that tbe last clause of section 1644 is a qualification of tbe provision of section 1643, that all causes appealed to tbe district court shall be tried anew. We do not think so. It is explained by reference to sections 1597, 1599, etc. Either party may desire to amend bis own pleading, or compel an amendment of bis adversary’s, but if be failed to make bis motion in the justice’s court, be might be held to have waived tbe right to make it in tbe district court. It is accordingly provided that tbe justice shall enter in bis docket a statement of all sucb motions and bis decisions thereon. (C. L., section 1623.) If bis decisions upon sucb motions are erroneous or arbitrary, tbe party aggrieved may renew bis motion or objection in tbe district court. It is sucb and similar objections that we think are contemplated by section 1644, and if so, it is perfectly consistent with tbe provision of section 1643, requiring all cases appealed to tbe district court to be tried anew. This construction of tbe law does not leave a party who has been improperly defaulted without a remedy. His remedy by certiorari is ampler than it would be if be bad the right of appeal, for be is not limited in tbe exercise of it to tbe period of thirty days; and if either party is dissatisfied with 'the judgment of tbe district court, an appeal lies to this court.

It is not contended in this case that there would have been any right of appeal to tbe district court if tbe defendants bad not first made their motion to vacate tbe judgment in the justice’s court. But we think the making of that motion dicl not change the remedy. The wrong complained of was the entry of judgment without jurisdiction. If the wrong had existed, and if certiorari was the appropriate and exclusive remedy, as we think it was, ■ a right of appeal was not created by the refusal of the- justice to undo the supposed wrong.

Our opinion is that the order of the district court vacating and setting aside the judgment in favor of the petitioners against Irving, McKay & Co., and adjudging the petitioners to pay the costs of the appeal, was erroneous, and in excess of the jurisdiction of said court, and it is hereby declared to be null and void.