207 P. 80 | Nev. | 1922
Melvin F. Phillips, a citizen of this state, sued Thomas Ginocchio and D. F. Capps, police officers of the city of Reno, to recover the sum of $10,000 as damages for his
The question is whether a writ of mandamus may be predicated upon such a return. The rule established by a number of decisions of this court relative to cases in which the writ of mandamus may issue is that before the relator can obtain the writ he must establish sufficient facts to. show that he has a legal right to have something done by the inferior tribunal which it
The return does not show that the judge refused or denied to the petitioner the right to further prosecute his action as a poor person, but that in the judgment of the court, uppn the showing made, plaintiff had failed to bring himself within the rule of the common law, if the same, as contended for by petitioner, prevails in this jurisdiction. As the judge' had the power to hear the motion, his determination upon the hearing thereof was necessarily a judicial act. It is difficult to perceive how mandamus will lie to review his action. To grant the writ would be in effect to review a judicial decision, which is not the function of mandamus.
It is argued that the ruling complained of was such a flagrant abuse of discretion as that it amounts to the petitioner being precluded from the enjoyment of his legal right to further prosecute his action as a poor person. Adopting the language of this court as used in State v. District Court, 40 Nev. 163, 161 Pac. 510, the respondent assumed jurisdiction, entertained the motion, heard the evidence in support of petitioner’s contention, and rendered a determinative judgment based upon the showing made, and either a correct or incorrect interpretation of the law applicable to the specific question in furtherance of which the showing was made. In that case McCarran, J., asked:
“What more could the lower court do if the writ were to issue now? Would it reverse its judgment entered upon the showing made? Would it take a different view of the law arising upon the case? Is it the function of the writ , of mandate to review errors of discretion or judgment and reverse decisions based thereon?”
Speaking for the court, the learned judge said:
“An answer to such query is found in the established principles of law applicable to the function of this extraordinary writ, which may be stated thus: The acts or duties, the performance or nonperformance of*30 which rests in whole or in part on the discretion or judgment of the inferior tribunal, board, or officer, will not be required by the writ of mandamus.”
The question underlying this proceeding is whether, in the absence of statute, the petitioner has the right to proceed, with the prosecution of his action in the district court without the payment in advance of the legal fees. We merely state the question in order that it may not be thought by our conclusion that we decide it.
Our conclusion is that return to the order to show cause does not show facts upon which a peremptory writ will lie.
The petition for the writ is therefore denied, and the proceeding dismissed.