Lyon County v. Esmeralda Co.

• Decision Date: 24 November 1883
• Citation: 1 P. 839,18 Nev. 166
• Parties: LYON CO. v. ESMERALDA CO.
• Court: Nevada Supreme Court

1 P. 839

18 Nev. 166

LYON CO. v. ESMERALDA CO.

Supreme Court of Nevada

November 24, 1883

This court, under the practice act, has jurisdiction only in cases commenced in and tried by a court. The legislature may enjoin upon a judge the performance of judicial functions, in matters outside of actions or proceedings in court; but, in such cases, there is nothing in the statutes authorizing an appeal from his orders.

Appeal from the Third judicial district court, Esmeralda county.

T. H Wells and D. J. Lewis, for appellant.

W. E F. Deal and J. C. Hazlett, for respondent.

LEONARD J.

At the last session of the legislature a statute was passed entitled "An act to detach a portion of Esmeralda county, and to annex the same to Lyon county," the sixth section of which is as follows:

"Sec 6. In the event of the boards of county commissioners of Esmeralda and Lyon counties failing to agree upon and determine the amount due Esmeralda county from Lyon county, as provided in section two of this act, the district judge of the Third judicial district shall order the county assessor of Esmeralda county to file in the district court of the Third judicial district, in and for Esmeralda county, a statement setting forth the amount of the entire taxable property in Esmeralda county, as shown by the assessment roll for the year eighteen hundred and eighty-two, and the amount thereof assessed in and belonging to the territory detached from Esmeralda county and annexed to Lyon county; whereupon the district judge of the Third judicial district shall, in accordance with the proportionate amount contemplated by section two of this act to be assumed by Lyon county, determine and declare the amount due Esmeralda county from Lyon county."

The second section provided that Lyon county should assume and pay such a proportion of the indebtedness of Esmeralda county as the taxable property in the detached and annexed territory, for the year 1882, bore to the payment of the entire indebtedness; and also that boards of county commissioners of the counties of Lyon and Esmeralda, should, prior to the first Monday of July, 1883, agree upon and determine the amount so due Esmeralda county from Lyon county, and should regulate the manner and time of paying the same. Prior to the first Monday of July, 1883, the board of county commissioners of Lyon county made a demand upon the board of county commissioners of Esmeralda county to fix a time and place of meeting of the two boards, and to agree upon and determine the amount due from Lyon to Esmeralda county, and to regulate the manner and time of paying the same, according to the provisions of said act of the legislature. The board of county commissioners of Esmeralda county failed to comply with the request and demand of the Lyon county board, and the result was the event first mentioned in section 6. Thereupon, on the second day of July, 1883, at a regular meeting of the Lyon county board, said board entered upon their minutes an order instructing the district attorney of said county "to present the matter to the district judge of the Third judicial district, that he might proceed in the premises as required by the act of the legislature aforesaid."

In pursuance of that order, the district attorney of Lyon county addressed to the district judge a communication styled in the transcript a "petition," wherein he set out the provisions of the statute referred to, the failure of the Esmeralda county board to comply with the requirements of section 2, the consequent failure of the boards to agree upon the amount due Esmeralda county from Lyon county, as provided in said section, and prayed that said judge might make such orders, and take such action in the premises, as might be just, and to carry out the provisions of the act of the legislature before mentioned. Thereupon a citation was issued out of the Third judicial district court, in and for Lyon county, directed to S. B. Hinds, assessor of Esmeralda county, commanding him to show cause before the district judge, at the time and place mentioned therein, why he should not file in the district court of the Third judicial district, in and for Esmeralda county, a statement setting forth the amount of the entire taxable property of Esmeralda county, as shown by the assessment roll for the year 1882, and the amount thereof assessed in and belonging to the territory detached from Esmeralda county and annexed to Lyon county. At the hearing the district attorney of Esmeralda county filed a demurrer to the petition, and the assessor filed an answer to the citation, setting forth certain reasons why he could not furnish a statement, and why he should not be required to do so by the judge. The demurrer was overruled, and the reasons given by the assessor having been deemed insufficient, he was ordered by the judge in open court to file the required statement. The district attorney of Esmeralda county filed and served a notice of appeal, wherein it is stated that the defendant appeals from the order and judgment of the district court overruling defendant's demurrer, and from the judgment; meaning, of course, the order commanding the assessor to file his statement

It is urged by the counsel for Lyon county that no appeal lies in this proceeding. This is the first question to be considered. Section 4 of article 6 of the constitution provides that "the supreme court shall have appellate jurisdiction in all cases in equity, also in all cases at law in which is involved the title or right of possession to, or the possession of, real estate or mining claims, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, (exclusive of interest,) or the value of the property in controversy, exceeds three hundred dollars also in all other civil cases not included in the general subdivisions of law and equity. ***" The statute governing appeals in civil actions provides that "an appeal may be taken -- First, from a final judgment in an action or special proceeding commenced in the court in which the judgment is rendered, within one year after the rendition of judgment. ***" Under the practice act this court has appellate jurisdiction only in cases commenced in and tried by a court. Before the supreme...