29 Nev. 191 | Nev. | 1906
Lead Opinion
By the Court,
Martha H. Blackwell brought suit in the Justice Court of Carson Township against Juan Launiza claiming damages for the herding of sheep on lands alleged to be owned and possessed by her and her assignors.
The affidavit of relator's attorney filed in this court states that by oral answer defendant entered a general denial to the allegations of the complaint, but the record as certified by the justice of the peace fails to show that there was any answer, either oral or written, verified or unverified, questioning plaintiff’s title to the lands. ■ She recovered a verdict and judgment for $75 and for costs and attorney’s fees. Patents, state contracts, and deeds introduced in evidence by her on the trial indicated that she was the owner of several hundred acres of the land, but there was a deed to her from Clara Sweeney, given three years previously, for eighty acres, for which the latter was not shown to have had any patent, contract, right, or title. It appears from the record that defendant in that action, who is relator here, testified so far as he knew the title to the lands was in the plaintiff and that he was not aware of any omission in her title. Defendant’s counsel was sworn as a witness, and stated from an examination of the documentary evidence it was apparent that plaintiff did not have title to all the lands. Thereupon, the attorney for the defendant renewed a motion to certify the ease to the district court for trial upon the ground that the title to real property was necessarily involved in the determination of the action, and that the justice court^ had no jurisdiction under section 3634 of the Compiled Laws.
The proceeding here is brought to review the action of the justice court in refusing to certify the case to the district court for trial and the question for determination is whether the title to real property was necessarily involved so as to deprive the justice court of jurisdiction. Section 8 of article VI of the Constitution of Nevada provides that justice courts shall not have jurisdiction "in cases wherein
We need not determine whether, in the absence of an issue raised by answer, evidence could be introduced on the trial to show a conflict in regard to the title. It is sufficient for the purposes of the case to say that if it could be so introduced and considered, the evidence submitted did not show that the right to real property was necessarily involved. There was a failure to prove that the plaintiff and her grantor had the patent right to this particular eighty acres, but it is not shown that she did not have a prior possession which would have raised sufficient presumption of her ownership in the absence of patents and deeds. Nor does it appear whether the trespass was committed on all the lands claimed by the plaintiff, or only on lands other than this eighty acres, which would not necessarily involve the title to the latter. If evidence may be considered for any purpose when no issue
It is ordered that the writ be dismissed, and that the papers certified from the justice court be returned to that tribunal.
Concurrence Opinion
concurring:
I concur in the order dismissing the writ. If the transcript of the justice’s docket had shown that an oral answer had been filed denying plaintiff’s allegations of ownership or right of possession, then, in my judgment, it would have appeared that an issue was raised requiring proof upon the part of plaintiff to establish her allegations of title or right of possession, and such proof the justice, under the provisions of the statute, would not have jurisdiction to hear. His duty then would have been to have certified the case to the district court. (King v. Kutner-Goldstein Co., 135 Cal.
Rehearing
ON Rehearing.
By the Court,
Upon the rehearing the attorney for the relator asked to introduce an amended record showing that a general denial ' of the allegations of the complaint by oral answer was entered in the justice court. We think he ought not to have waited until after the argument and the rendition of our decision, and that the objection of respondent that the offer comes too late is well taken under the following rule 8: "Exceptions or objections to the -transcript, statement, the undertaking on appeal, notice of appeal, or to its service or proof of service, or any technical exception or objection to the record affecting the right of the appellant to be heard on the points of error assigned, which might be cured on suggestion of diminution of the record, must be taken at the first term after the transcript is filed, and must be noted in the written or the printed points of the respondent, and filed at least one day before the argument, or they will not be regarded.”
When a party assigns errors, it is incumbent on him to see that the record is in the condition in which he is entitled to have it. If he proceed upon an imperfect transcript, and the judgment of the court is against him, he cannot as a matter of right claim a certiorari to the inferior tribunal. Suggestions of imperfections in records must be seasonably made and in conformity to the rules of practice, or they will be denied. The court and suitors are bound by its rules, and they should be construed as statutes would be construed. (Merchants’ Nat. Bk. v. Grunthal, 39 Fla. 388, 22 South. 685, and cases there cited.) Although constrained to so hold, we would do so with reluctance if we did not believe that the correction of the record could make no difference in the result.
If the plaintiff in an action alleges 'that he is the owner of a piece of land, the mere entry of an oral denial does not warrant the certification of the case, unless the courts legislate words into the statute which it does not contain, and at the same time nullify the force’of the provision that the case may be removed when it appears by a verified answer or by the plaintiff’s own showing that the title is involved, for this provision would be surplusage if the mere entry of an oral denial requires removal, of the case. Oral and unverified answers may be, and often are, entered for delay, and not seriously. They may be easily made when the defendant has no bona fide contention regarding the title, and to hold that they are sufficient to require the certification of the case would often lead to its removal when there is no proper issue for the district court to try under its original jurisdiction, and enable overcontentious attorneys to unnecessarily delay and annoy opposing litigants and trifle with the
When the defendant or his attorney took the stand on the trial and testified that, so far as he knew, the title to the lands had always been in the plaintiff, there was an admission and an estoppel, which, regardless of any pretense to the contrary in the oral answer, indicated that there was no bona fide contention that the title was in defendant or in any one other than the plaintiff, or which required the removal of the case to the district court. It should not be demanded of any tribunal to try, or to have certified to it for trial, any matter which is not bona fide in contention. On -the same principle courts refuse to determine >cases which have been settled by the parties.
The order heretofore entered directing,that the writ be dismissed, and that the papers be returned to the justice court, is approved.
Dissenting Opinion
dissenting:
I am unable to concur in the opinion of the court in this case. The court having granted a rehearing, the proceeding was in the same condition it was before hearing had. Prior to the argument on rehearing the court's attention was directed to the fact that respondent had, by mistake, failed to certify a complete transcript upon the return of the writ, and a correct transcript, duly certified, was presented for the consideration of the court. I think it was the duty of the court, under these circumstances, to have proceeded with the
