Floyd v. Sixth Judicial Dist. Court in and for Humboldt County

• Decision Date: 16 October 1913
• Docket Number: 2,070.
• Citation: 135 P. 922,36 Nev. 349
• Parties: FLOYD ET AL. v. SIXTH JUDICIAL DIST. COURT IN AND FOR HUMBOLDT COUNTY ET AL.
• Court: Nevada Supreme Court

135 P. 922

36 Nev. 349

FLOYD ET AL. v. SIXTH JUDICIAL DIST. COURT IN AND FOR HUMBOLDT COUNTY ET AL.

No. 2,070.

Supreme Court of Nevada

October 16, 1913

Petition for writ of mandate by Elizabeth Floyd and another against the Sixth Judicial District of Nevada, in and for the County of Humboldt, and Hon. L. N. French, Judge of the Eighth Judicial District Court of the State of Nevada. Writ issued.

W. H Dial and R. Gilray, both of Winnemucca, for petitioners.

Salter & Robins, of Winnemucca, for respondents.

McCARRAN J.

In this case judgment was rendered against the petitioners in the justice court of Union township, Humboldt county, Nev., for the sum of $300, and for the further sum of $105.75, assessed as costs. Within the time prescribed by statute the petitioners filed and served notice of appeal to the District Court of the Sixth Judicial District, in and for Humboldt County, and on the same day, and after the filing and service of said notice of appeal, petitioners deposited with the justice of the peace the sum of $405.75 in gold coin. This fact is evidenced by the minutes of the justice court as follows: "That heretofore, on the 11th day of September 1911, defendants appeared herein by their attorney R. Gilray Esq., and filed herein notice of appeal in writing, and deposited with the justice of said court, the sum of $405.75 the amount of the judgment appealed from including costs. J. T. Dunn, Justice of the Peace." Following this is the further entry of the justice of the peace, as follows: "Sept. 11th, Oastler v. Floyd. Notice of appeal filed by deft. and $405.75 paid into court in lieu of appeal bond. $2.00 appeal fees paid." Subsequent to this the justice of the peace deposited with the clerk of the district court a certified copy of his docket and the papers filed in the case, and also the sum of $405.75, deposited with him as hereinabove set forth. The plaintiffs in the justice court moved the district court to dismiss the appeal on the ground that more than 30 days had elapsed since the judgment was made and rendered in the justice court, and that no undertaking had been filed in said justice court in the sum of $100 for the payment of costs on appeal. The motion to dismiss was granted, and an order dismissing the appeal was entered. Petitioners ask that a writ of mandate issue out of this court directing the district court to take cognizance and jurisdiction of the said case and try and determine the same on its merits.

To the petition filed herein a demurrer is interposed on the ground that the petition does not state facts sufficient to authorize a writ of mandate, for the reason that it appears from the petition that respondent Judge French proceeded with the case, and decided that a certain sum of money deposited with the justice of the peace was made in lieu of the undertaking to stay proceedings, and that there was no undertaking or deposit on appeal. Respondents in their demurrer rely on former decisions of this court, and say: "Assuming that the action of the respondent judge was error, still it was within the exercise of jurisdiction, and mandamus will not lie to review its action." In support of their contention they cite: State ex rel. Treadway v. Wright, 4 Nev. 119; Andrews v. Cook, 28 Nev. 269, 81 P. 303; Breckenridge v. Lamb, 34 Nev. 275, 118 P. 687.

The primary question to be determined in this proceeding is, Will mandamus lie to review the action of the district court and to compel the district court to proceed in a case in which that court has divested itself of jurisdiction by erroneously dismissing an appeal? There is no controversy in this case respecting the facts, as set forth in the petition, and respondents in this matter rely entirely upon the doctrine, as previously announced by this court, that where the district court erroneously divests itself of jurisdiction to try a cause appealed from a justice court, its action in that respect is final and will not be disturbed. As early as 4 Nevada this court laid down the rule that where, in matters of this kind, the district court made an order disposing of a cause, no matter how erroneous it may have been, it could not be reviewed in this court. This principle has been followed in all of the cases in which the matter has been presented, and in a recent decision (Andrews v. Cook, supra) this court approvingly quoted the language of Lewis, J., in the Treadway Case, supra, and also the language of Hawley, J., in the case of Floral Springs W. Co. v. Rives, 14 Nev. 431, In the case of Breckenridge v. Lamb, 34 Nev. 275, 118 P. 687, this court again gave sanction to the rule in a statement to the effect that the action of the district court in dismissing a matter appealed from the justice court, even though erroneous, was final and not subject to review. The rule laid down by this court in the several cases heretofore referred to was concurred in by courts of last resort of other jurisdictions, and the Supreme Court of California in the case of Buckley v. Superior Court of Fresno Co., 96 Cal. 119, 31 P. 8, expressly overruled their former decisions relative to this matter, and by a divided court laid down the new rule to the effect that where the superior court had dismissed an appeal from a justice court, though erroneous, was nevertheless final, and a writ of review would not lie. This doctrine, however, was annunciated in the Buckley Case, supra, was overruled in the case of Golden Gate Tile Co. v. Superior Court of Calif. and City and County of San Francisco et al., 159 Cal. 474, 114 P. 978, and in the case of Edwards et al. v. Superior Court of Alameda Co., 159 Cal. 710, 115 P. 649, and the rule set forth in the former decisions again annunciated.

In the case at bar the dismissal of the appeal was a refusal on the part of the court to give appellant a hearing in the case. In a case where the district court takes jurisdiction and acts, its acts will not be subject to review by a writ of mandate, but where such tribunal refuses to take jurisdiction at all, when by law it ought to do so, or where having obtained jurisdiction it refuses to proceed in its exercise, mandamus is the proper remedy. Errors committed in the exercise of judicial discretion cannot be made the subject of review, nor can they be corrected by a writ of mandamus, but where a district court erroneously decides that it has no jurisdiction, the writ of mandamus is the proper remedy to compel that tribunal to do that which the law prescribes it should do--assume jurisdiction and proceed with the cause. Hollon Parker, Petitioner, 131 U.S. 221, 9 S.Ct. 708, 33 L.Ed. 123. The dismissal of a case is a refusal on the part of the dismissing court to hear and determine the cause, and the party aggrieved in such a proceeding may properly invoke a writ of mandamus to compel the court to set the case and proceed to its determination. Harrington v. Holler, 111 U.S. 796, 4 S.Ct. 697, 28 L.Ed. 602. The right of a party litigant to a judgment of a court upon the merits of the matter litigated is the fundamental aim of the law. The object of courts primarily is that they should assume the function of legal and equitable arbiters and decide controversies upon their merits.

While it may be said that in cases of this character the lower court had jurisdiction to grant or deny a motion to dismiss, nevertheless that court could not refuse to hear a matter upon its merits when it was regularly before it for that purpose, nor could it divest itself of jurisdiction by an erroneous order any more than it could assume jurisdiction by arbitrarily saying that it had the right to proceed. The rule has been approvingly stated to the effect that where an inferior court refuses to entertain jurisdiction on a matter preliminary to a hearing on the merits, the writ of mandamus may be resorted to for the purpose of requiring the court to proceed. Brown v. Min. Co., 105 Mich. 653, 63 N.W. 1000; Castello v. St. Louis Circuit Court, 28 Mo. 259.

Mr. Bailey in his treatise on the Law of Special Remedies, dwelling upon the subject of Mandamus and referring to the rule as stated above, says: "I observe that it has been contended by some judges and lawwriters that this rule (if it be a rule) extends to embrace erroneous construction of some question of law or of practice which is preliminary to the whole case. If it were confined to questions relating to the power or jurisdiction of the court, then there is abundant authority for the position assumed. If, on the other hand, it is intended to assert that the rule embraces all cases where the court refuses to proceed to the merits, then I should very much doubt the application of any such rule. Courts often err in determining questions of law or practice upon demurrer or motion, whereby the merits of an action are not reached, and the party has an adequate remedy by appeal or writ of error. If mandamus would lie, it certainly would transform that writ into a writ of error." Bailey on Habeas Corpus, vol. 2, p. 883.

It has been well stated, in substance, that although a writ of mandamus is not a means by which the manner of conducting proceedings, the rulings of a court upon questions of evidence, or jurisdictional matters involving the merits can be reviewed, its scope, however, embraces the right of the reviewing court to compel an inferior tribunal to proceed in a case where, by an erroneous ruling, it has divested itself of jurisdiction. Golden Gate Tile Co. v. Superior Court of Calif. and City and County of San Francisco et al., 159 Cal. 474, 114 P. 978.

The jurisdiction of the district courts of the state of Nevada is prescribed by section 6, article 6, of the Constitution of the state, which is in part as follows: "They shall also, have final appellate...