138 P. 900 | Nev. | 1914
By the Court,
This is an appeal from an order of the district court of the Fourth judicial district denying petitioner’s application for a writ of certiorari to review a judgment entered by respondent as justice of the peace of Las Vegas township against petitioner and in favor of Antonio Mendez, plaintiff in the justice court, in the case of Mendez v.
Counsel for respondent refer us to the case of Andrews v. Cook, 28 Nev. 265, 81 Pac. 303, and also to the case of Treadway v. Wright, 4 Nev. 119, and Floral Springs Water Co. v. Rives, 14 Nev. 435. In the case of Floyd & Guthrie v. Sixth Judicial District Court, 36 Nev. 349, 135 Pac. 922, this court expressly overruled the doctrine as annunciated in the case of Treadway v. Wright, 4 Nev. 119, and Andrews v. Cook, 28 Nev. 265, 81 Pac. 303.
It is our judgment that the doctrine annunciated in the case of Heinlen v. Phillips, supra, establishes the better rule in a case of this kind, and this court will entertain an appeal from an order and judgment of the lower court in certiorari from the justice court. The motion to dismiss is therefore denied.
The record discloses that the only matter relative to the service of summons upon the defendant was the docket entry made on March 20, as follows: "Attorney Van Pelt came into court and made return on summons as by law provided. ”
In the case of McDonald v. Prescott, et al., 2 Nev. 109, 90 Am. Dec. 517, this court established a rule directly
In the entry of the justice court as certified to this court, there is a total absence of any entry as to service of summons. The bald allegation,"Attorney Van Pelt came into court and made return on summons as by law provided, ” conveys none of the prerequisites to give the court jurisdiction. There is an absence of the essential requisites as to how, when, where, and by whom service of summons was had upon the defendant. As stated by this court in the case of McDonald v. Prescott, supra, nothing is presumed in favor of the jurisdiction of the district court; its jurisdiction and all facts essential to establish jurisdiction must affirmatively appear.
It follows that the order of the district court, dismissing the writ, will be vacated, and the district court is instructed
It is so ordered.