Peacock v. Leonard

| Nev. | Apr 15, 1873

By the Court,

Whitman, C. J.:

Motion is made to amend the judgment in Peacock, Relator, v. Leonard on certiorari, ante 84, by giving costs in favor of the relator on the proceedings in the district court. Could the judgment in any case be thus amended it could only be so at this time upon something appearing in the original record. The papers sent up on certioraid show a judgment for costs against relator, but the return of the sheriff states expressly that nothing was made out of him. What he expended and would in an ordinary action have had the right to tax against respondent does not appear; so even were it possible in such case to have afforded means of restitution upon annulling the action of the district court, this is not that case, and herein the relator has by the judgment on certiorari all the relief to which he proved himself entitled.

The further relief prayed in the motion stands upon a different footing. It appeared by the papers referred to that relator had been dispossessed of certain real property by the writ of the district court; and he asked in'his petition to be restored to what he had lost. No special order was made for a writ from this court, and now motion is made to that end. It is unnecessary to consider whether this court may issue any writ in aid of its original jurisdiction (which to a certain extent is evidently granted by the constitution) other than those therein enumerated, as proceedings upon certiorari for the review of the action of an inferior tribunal are of appellate nature, though not pursued in ordinary and technical form of appeal. People v. Turner, 1 Cal. 143" court="Cal." date_filed="1850-06-15" href="https://app.midpage.ai/document/people-ex-rel-mulford-v-turner-5432285?utm_source=webapp" opinion_id="5432285">1 Cal. 143.

So the only question here is, can the court issue such a writ as will make its judgment effective? Ordinarily it acts in a given case through a district court, but such action is here impossible. Leonard v. Peacock, on appeal, ante 157. It therefore necessarily follows that the writ must issue here-from or not at all; and if not, then a judgment has been pronounced which cannot be executed or put in process of execution, as the restitution of relator is the logical and only practical sequence of tbe annulment of tbe action of tbe district court. Tbe law does not favor any sucb anomaly. A writ of restitution in favor of relator is required to carry out and fulfill tbe judgment of tbis court. Tbis proceeding upon certiorari being, as bas been seen, of appellate nature, tbe required writ bas tbe sanction of tbe letter of tbe constitution as one “necessary or proper (from tbis court) to tbe complete exercise of its appellate jurisdiction.”

Let tbe writ issue in ordinary form, directed to tbe sheriff of Wasboe County.