Nevada Lincoln Mining Co. v. District Court of the Eighth Judicial District, 175 P. 1006

Nevada Lincoln Mining Co. v. District Court of the Eighth Judicial District

175 P. 1006 | Nev. | 1920

By the Court,

Coleman, C. J.:

This is an original proceeding in certiorari to inquire into the jurisdiction of the respondent court to render the judgment in question.

It appears that on July 12, 1917, Frank Wilson, one of the respondents, commenced an action in the Eighth *400judicial district court, in and for Churchill County, against the Nevada Lincoln Mining Company, a corporation organized under the laws of this state, to recover judgment in the sum of $1,050 for services rendered to, and money expended in behalf of, the said corporation. It appears also that the summons which was issued on the day mentioned was placed in the hands of J. H. Stern, sheriff of Ormsby County, Nevada, on the 9th day of August, 1917, and that on that day, after receiving from George Brodigan, secretary of state of the State of Nevada, a certificate stating that the Nevada Lincoln Mining Company, a corporation, had never filed a list of its officers or the name of an agent in this state upon whom process might be served, he served the summons in the action upon the Nevada Lincoln Mining Company, a corporation, by delivering a copy of the same, to which was attached a copy of the complaint in the action, to the said George Brodigan, secretary of state.

There also appears the affidavit of M. L. Wildes, sheriff of Churchill County, certifying to his being over the age of 21 years, the duly elected and acting sheriff, etc., and that on October 1, 1917, he had posted in the office of the county clerk of Churchill County and ex officio clerk of- the district court in and for said county, at Fallon, Nevada, a full, true, and correct copy of the original summons in said action, to which was attached a certified copy of the complaint filed therein.

It also appears that on November 2, 1917, the case of Frank Wilson, Plaintiff, v. Nevada Lincoln Mining Company (a corporation), Defendant, was called for hearing before the respondent court, and that at that time the default of the defendant company was entered and judgment rendered in favor of the plaintiff and against the defendant, as prayed in the complaint.

The judgment of the court recites that “it appearing that service of process upon the defendant corporation could not be had by delivering a copy thereof personally *401to the president, cashier, secretary, or resident agent of such corporation, or by leaving the same at the principal place of business of said corporation in this state,” service was made in the manner stated herein.

It also appears that after j udgment had been rendered an execution was issued thereupon, and that the mining claims mentioned were levied upon as the property of the judgment debtor, and that after due notice they were sold and disposed of to satisfy said judgment.

Section 87 of the corporation act (Rev. Laws, 1188, as amended, Stats. 1913, p. 65, sec. 1) reads:

“Service of legal process upon any corporation created under this act or subject to its provisions shall be made by delivering a copy thereof personally to the president, cashier, secretary or resident agent of such corporation, or by leaving the same at the principal office or place of business of the corporation in this state. Service by copy left at the said principal office or place of business in this state, to be effective, must be delivered thereat at least thirty days before the return of the process, and in the presence of an adult person; and the officer serving the process shall distinctly state the manner of service in his return thereto, naming such person; provided, that process returnable forthwith must be served personally; and provided further, when for any reason service cannot be had in the manner hereinbefore provided, then service may be made by delivering a copy to the secretary of state at least thirty days before the return of process and by posting a copy of such process in the office of the clerk of the court in which such action is brought or pending, at least thirty days before the return of such process.”

1. The only question which we could inquire into in this proceeding would be as to whether or not such service of summons was obtained upon defendant in the action sought to be reviewed as gave the court jurisdiction to proceed. Kapp v. District Court, 31 Nev. 444, 103 Pac. 235.

*402Upon the hearing in this matter respondents urged various reasons why a writ of certiorari should not issue in this case. Among them it was contended that since the alleged sale of the property third parties had acquired whatever title passed thereby, had expended large sums of money in developing the property, and had opened up a valuable mine. It was also urged that the petitioner had not acted, in applying for this writ, with reasonable diligence, and that great and irreparable injury would be done should the writ issue herein. It was also contended by counsel for respondent that the petitioner had an adequate remedy in equity.

2. While the law applicable to the situation presented • herein seems clear, the question of determining just what our order should be is one which has caused us a great deal of trouble and anxiety. The writ of certiorari does not issue as a matter of right, but in the sound discretion of the court. Hagar v. Yolo County, 47 Cal. 222; St. Louis v. State, 55 Ark. 200, 17 S. W. 806; Spelling, Extr. Rem. (2d ed.) sec. 1897; Bailey, Hab. Corp. & Spec. Rem. p. 648; 5 R. C. L. 254.

3. After numerous conferences, in view of all the facts we have reached the conclusion that a court of equity is more capable of affording adequate relief and of doing justice in the matter than is this court in a proceeding of this character. We are therefore of the opinion that these proceedings should be dismissed.

It is so ordered.