4 Nev. 119 | Nev. | 1868
By the Court,
The relator petitions this Court to issue a peremptory writ of mandamus to the defendant, Wright, commanding him to proceed with the trial of a certain action between one Hotelling and himself. The facts disclosed by the affidavit on behalf of the relator, and upon which the writ is asked, may in substance be thus stated:
Hotelling brought an action against Treadway in a Justice’s Court, to recover the sum of one hundred and ten dollars; and on the twenty-ninth day of January, recovered judgment. A few days afterwards Treadway took an appeal from the judgment so .rendered against him to the District Court for the County of Ormsby. At the first term of that Court after the appeal was taken, the respondent, Hotelling, moved to dismiss the appeal, upon the ground- that it had not been regularly taken, no revenue having been placed upon the notice of appeal as required by law. Although not stamped until after the expiration of the time within which the notice was required to be filed and served, stamps were placed upon it before the motion to dismiss was made. Upon proof of these facts, the defendant, who was the Judge of tho District Court, ordered the appeal to be dismissed. And now the re
The Judge below may have erred in dismissing the appeal, but it.is very certain that the error cannot be corrected by mandamus. The office of mandamus is to compel action, not to correct errors. When an act is once done, no informality or error will authorize it to be set aside or reviewed by such writ. If the order dismissing were correct, mandamus should certainly not issue. We cannot say it is erroneous, without reviewing the action of the Court below.
The statute authorizes the issuance of the writ to “ compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” If the defendant had refused to dispose of, or hear the cause between Hotelling and the relator, the case would be then brought within the provision of the statute. The Judge below, it is true, refuses to try the cause upon its merits, but the reason given for it is, that the cause had already been disposed of. Now, if the order dismissing the cause were correct, it cannot be claimed by any one that this writ ought to issue to reinstate it, and compel the Judge to try it upon its merits. If by reason of irregularity in the appeal the case was not brought within the jurisdiction of the District Court, it was its duty to dismiss it.
But how is this Court to determine whether the Court below rightly dismissed the appeal or not ? We have no means of ascertaining that' fact, except by reviewing all the proceedings upon the motion to dismiss, and examining the evidence produced to sustain it. To do so, however, would be to review the judicial action of the lower Court, precisely as if an appeal had been taken from the judgment of dismissal, which cannot be done in a proceeding of this character. The case could not be brought to this Court by appeal, because the sum involved is not sufficient to give it jurisdiction, but upon the application for this writ, we are asked to review an order or judgment of the Court below, adjudge it to be erroneous, set it aside, and direct the Court to proceed with the trial. To do so, would simply be to convert the writ of mandamus into a writ of error.
In the case of Cavanaugh v. Wright, 2 Nev. 166, it will be observed the Court refused absolutely to proceed with the trial, and the writ issued commanding it to try the cause. Hence, this is not a case in point, as here the Court has disposed of the case to compel the trial of which this writ is asked.
Writ refused.
