36 Nev. 577 | Nev. | 1913
By the Court,
Petitioner applies for a writ of- certiorari to review the action of the district court, which he claims was without jurisdiction to try and to render judgment against him under the following conditions:
On the 16th day of' February, 1909, petitioner, as an attorney at law, brought an action in the district court of Douglas County for one Harry Simpson, plaintiff, against the Buckskin Gold Nugget Mining Company, a corporation, defendant, to foreclose a mechanic’s lien amounting to $374 for wages, on mining claims situated in Douglas County. Pending this action', Simpson became afflicted with a fatal illness, and, being apprehensive of death, had the bills against him presented, including bills mentioned in the petition, and one for $150 owing petitioner for legal services, and signed an indorsement acknowledging that he owed them, and requesting that they be paid out of any property which he possessed, which indorsement was witnessed by Theodore H. Trankle. Simpson authorized the petitioner to retain the $150 out
While the action was pending, and on the 17th day of June, 1910, before judgment was obtained, Simpson made an assignment of his claim and lien, for the wages hereinbefore mentioned to Trankle, who filed this assignment for record with the county recorder at Genoa on June 9, 1910, -but did not otherwise notify the company that he was the assignee of the claim and lien. Trankle was not substituted and did not request to be substituted in the action.-
Simpson- died on July 6, 1910, and- on the 14th .of that month, after publication of notice to lien claimants,.petitioner, purporting to act as attorney for Simpson, obtained a decree, of the-district court in. the name of Harry Simpson against the Buckskin Gold Nugget Mining Company for the sum of $350 and costs. Trankle did not. appear in court, or. under his assignment or otherwise -except to these proceedings. • ■ ■ •
After publication of -notice- of sale, and on -the 29th day of July, 1910, the sheriff on the- advice of petitioner, purporting to act for Simpson, accepted from J. A. Knox $425 for release and satisfaction, of the judgment of decree- for foreclosing the lien- against the Buckskin Gold Nugget Mining Company. On August 5 following, a purported satisfaction and- discharge of- -the lien and judgment was entered. ■ From the amount so collected, and after making deductions for fees of the-sheriff and clerk and for publication of notice, the sheriff sent the petitioner. $357.05. After deducting costs, including fee of $150 for the petitioner, he sent to the clerk, with direction to credit to Harry Simpson, deceased, subject to the order of the district court of Douglas County, the balance of $154.55, which-was deposited with the clerk on the 26th - day of August, 1910, and has since remained with him, and which has been the bone of contention.
It is alleged that Trankle did' not make known to petitioner the assignment of Simpson’s claim or lien until after the judgment -and decree had been obtained, and that, before bringing suit against petitioner, Trankle
After trial, and on December 22, 1910, judgment was rendered in the justice’s court in favor of .-Trankle and against the petitioner, for $154.55 and attorney^ fees and costs, and after appeal and trial in the district court this judgment of the justice^ court was affirmed on the 18th day of November, 1912..
Petitioner contends that, in entering judgment against him the justice’s court and the district court on appeal had "no jurisdiction over the money and property of a deceased person, in that-the matters stated.in such complaint are not such allegations as to establish- a contract between the said plaintiff, Theodore H. Trankle,- and the defendant,. J. Andrew Guttery, for the payment of money, in that said complaint contains no allegation establishing any contract between the said. plaintiff and the said defendant, and- in that the complaint, ■ even- if it establishes a trust relation-between the-said plaintiff and the
It is further claimed that the justice’s court by assuming jurisdiction in the first instance, and the district court assuming jurisdiction on the appeal, have subjected the petitioner to an expensive suit which is wholly unwarranted in law, and forced him to defend the action and resist the execution of judgment, or accept the alternative •of being liable in double the amount in controversy to the estate of Harry Simpson, deceased, under section 95 of the probate act.
Petitioner alleges that he has exhausted his right of •appeal, and that the judgment will be carried into effect unless reviewed by this court.
In reference to the contention that the complaint in the justice’s court does not state facts sufficient to constitute a cause of action, it is said that certain statements in that complaint, such as that "he was' accountable to the owners,” "and ever since the 7th day of June, 1910, plaintiff has been the owner of said -lien,” "and ■entitled to an accounting from defendant of the amount released, ” are conclusions of law. This may be conceded, and still the complaint, taken as a whole, is sufficient. The allegation that the defendant in that action, who is the petitioner here, undertook the collection of the
The same technical pleadings are not required in a civil action in the justice’s court that are necessary in a criminal ■ proceeding which may deprive one of his liberty, or in a case originating in the district court. In either court meager allegations showing the issue may support a pleading attacked after judgment which might be deemed insufficient before. Allegations in the nature of conclusions of law are generally sufficient in some forms of action, such as statements merely asserting ownership or possession of property in ejectment and replevin, or that a specified sum is owing upon an account for articles sold and delivered. It is not intended that the pleadings in civil action in justice’s courts, in which any person unskilled in the law may appear as attorney, shall be difficult. They may be direct and simple. Our former civil practice act provided for the commencement of actions in justices’ courts “by filing a copy of the account, note, bill or instrument upon which the action was brought, or a concise statement in writing of the cause of action, and the issuance of a summons theréon, or by the voluntary appearance and pleadings of the parties.”
The new code provides that the pleadings in justices’ courts are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended. With the exception
The complaint filed in the justice’s court against the petitioner contains statements which would indicate to persons of ordinary understanding that it was sought to recover, after payment of costs, the balance of the money paid by the Buckskin Gold Nugget Mining Company to the petitioner on the claim of lien of Harry Simpson against the company which had been assigned by him to Trankle.
Under the constitution and statute the justice’s court is the only one having jurisdiction to try and .the power to hear and determiné demands or controversies regarding simply the recovery of money where the amount involved does not exceed $300, and the district court is the only one having appellate jurisdiction of such controversies. The action of Trankle against the petitioner being simply for the recovery of money in an amount less than $300, it could be brought only in the justice’s court.
Evidently the petitioner made a mistake by treating the lien as a claim belonging to the estate of a deceased person. Under the assignment made by Simpson the lien passed to Trankle instead of remaining the property of Simpson or becoming a part of his estate. Whether Simpson lived or died, Trankle could collect the claim secured by the lien without making Simpson or his
If it be conceded that at the time the Buckskin Gold Nugget Mining Company paid the money to petitioner both were unaware that Simpson had made an assignment of the lien; that the money was paid with the expectation that petitioner would pay it to Simpson; that there was no agreement for paying it otherwise, and that petitioner paid it to the county clerk as ex officio clerk of the district court under the belief that the money belonged to the estate of Harry Simpson, deceased, nevertheless, from the undisputed facts as they appear in this proceeding, and from the complaint in the justice’s court, Simpson had made the assignment transferring the claim and lien to Trankle, and the record of the assignment was constructive notice to petitioner and the company at the time the money was paid by the company, and the money, being paid on the claim and lien, in law belonged to Trankle as the assignee of the claim, and as such assignee he was entitled to recover it. If petitioner had paid the money to Simpson, or to any one who had been entitled to receive it, before there was notice of the assignment, the law would not require him to pay it a second time. The act relating to conveyances provides that “every • instrument in writing setting forth an agreement to convey any real estate or whereby any real estate may be affected, * * *■ acknowledged, certified and recorded, shall from the
It does not appear that any special or general administrator or executor was appointed, nor that any application for administration on the estate of Harry Simpson, deceased, was made. There being no statute providing for the payment of the money to the clerk, and no court order regarding it, any payment to him by the petitioner under the mistaken belief that the money belonged to the estate of Harry Simpson, deceased, was not authorized by law, and .the amount remains subject to the control of the petitioner, because he is responsible for its payment to Trankle under the judgment which the justice’s court had jurisdiction to render.
If under any contention in the case it could be held that the assignment did not transfer the lien and right of action to Trankle, and that the claim continued to belong' to Simpson, differently than in the case of an action upon a claim against an estate,' which cannot be maintained until after the presentation to and rejection by an administrator or district judge, the justice’s court would have had jurisdiction, if an action had been brought by him or his administrator to recover the sum mentioned, to which Trankle became entitled under the assignment.
The question of the invalidity of the judgment or the lien rendered after Simpson’s death is immaterial, for none of the cost incident to the action is involved in the case in the justice’s court. The expense of the suit to foreclose the lien was collected from the company and paid. Notwithstanding Trankle did not become a party to that action, he is entitled to the money paid for the satisfaction of the claim and lien which had been assigned to him, and jurisdiction of the action for the recovery thereof was vested in the justice’s court, and in the district court on appeal.
The application for the writ is denied.
