State ex rel. Thatcher v. Justice Court of Reno Township, 207 P. 1105

State ex rel. Thatcher v. Justice Court of Reno Township

207 P. 1105 | Nev. | 1922

Per Curiam:

This is an appeal from a judgment rendered in a proceeding in certiorari and from an order denying a new trial therein.

The .undisputed facts are that Augustus Tilden obtained a judgment by default against relators in the *138justice court of Reno township for their failure to appear, answer, or demur. Seventeen days after the rendition and entry of the judgment, the relators moved in said justice court to have the judgment set aside and vacated, upon the ground of inadvertence and excusable neglect. The justice denied the motion, and thereafter they sued out a writ of certiorari to review the judgment. Upon the return to the writ and the answer of Augustus Tilden to the petition therefor, the reviewing court decided and held the judgment to be void for want of jurisdiction. Counsel for appellant asserts that the j udgment is against law, and that the evidence is insufficient to support the judgment.

The rule is so well established that the limit of the inquiry upon certiorari is the question of the jurisdiction of the court, that it should never again be questioned, directly or indirectly, in this jurisdiction. Ignoring, then, all errors of law and the insufficiency of evidence except in so far as they relate to the question of jurisdiction, we shall inquire whether the return shows that the justice court exceeded its jurisdiction.

It is conceded that the copy of the complaint served personally upon relator was not certified by the justice or the attorney for plaintiff to be a true and correct copy of the complaint on file in the j ustice court. The reviewing court, upon the authority of Martin v. Justice Court of Elko Township, 44 Nev. 140, 190 Pac. 977, held this to be a jurisdictional requirement, and that the justice was without jurisdiction, power, or authority to render the judgment.

Counsel for appellant does not question this authority, but invokes the rule that if one against whom a judgment has been rendered by default without a valid service of process appears to ask that the default be set aside and for leave to answer on the merits, he thereby waives the want of process. It is not for want of process that relators attack the judgment, but for the failure of the plaintiff or the justice to comply with what the court held in the Martin case to be a jurisdictional requirement of the statute.

*139This court, in Iowa M. Co. v. Bonanza M. Co., 16 Nev. at page 73, said:

“There is a marked, and in many respects, important and substantial distinction, between defects in practical proceedings, which constitute mere irregularities, or such as render the proceeding a total nullity and altogether void. Where the proceeding adopted is that prescribed by the practice of the court, and the error is merely in the manner of conducting it, such an error is an irregularity, and may be waived by the laches or subsequent acts of the opposite party; but where the proceeding is altogether unwarranted, totally dissimilar to that which the law authorizes, then the proceeding is a nullity, and cannot be made regular by any act of either party.”

We are not disposed to change the rule thus adopted. Sustaining the rule are: Baskins v. Wylds, 39 Ark. 347; Southern B. & L. Assn. v. Hallum, 59 Ark. 583, 28 S. W. 420; Correll v. Greider, 245 Ill. 378, 92 N. E. 266, 137 Am. St. Rep. 327; Mills v. State, 10 Ind. 114; Osborn v. Cloud, 21 Iowa, 238; Boals v. Shules, 29 Iowa, 507; Mayfield v. Bennett, 48 Iowa, 194; Godfrey v. Valentine, 39 Minn. 336, 40 N. W. 163, 12 Am. St. Rep. 657; Roberts v. Railway Co., 48 Minn. 521, 51 N. W. 478; Spencer v. Court of Honor, 120 Minn. 422, 139 N. W. 815; McGuinness v. McGuinness, 72 N. J. Eq. 381, 68 Atl. 768; Yorke v. Yorke, 3 N. D. 343, 55 N. W. 1095. And see Simensen v. Simensen, 13 N. D. 305, 100 N. W. 708.

We do not think there is any ground for the contention that there was such an election of remedies as precluded the prosecution of this proceeding. The very essential of election is that a party must resort to one of two inconsistent remedies. Robertson v. Robertson, 43 Nev. 50, 180 Pac. 122, 187 Pac. 929. There is nothing inconsistent between the remedy resorted to in the justice court and in this proceeding.

As to the contention of estoppel, we need only say that an essential to the successful invoking of the doctrine of estoppel is that a party has, by the conduct of *140the other party, been induced to change his position to his detriment. Sharon v. Minnock, 6 Nev. 377. There has been no change of position on the part of appellant, such as contemplated by the law.

The j udgment is affirmed.