Nevada Cent. R. Co. v. District Court of Lander County

• Citation: 32 P. 673,21 Nev. 409
• Decision Date: 14 April 1893
• Docket Number: 1,370.
• Parties: NEVADA CENT. R. CO. v. DISTRICT COURT OF LANDER COUNTY.
• Court: Nevada Supreme Court

32 P. 673

21 Nev. 409

NEVADA CENT. R. CO. v. DISTRICT COURT OF LANDER COUNTY.

No. 1,370.

Supreme Court of Nevada

April 14, 1893

Syllabus by the Court.

1. Where, by consent of parties, a case in a justice's court is adjourned for more than 10 days, the undertaking provided for by section 3565, Gen. St., is not required, and a dismissal of the action for the reason that such undertaking has not been given is error.

2. Where the notice of appeal properly describes the judgment from which the appeal is taken, the addition of other words indicating that the appeal is taken from the order dismissing the action, on which order the judgment is founded, should be treated as surplus age, and they do not invalidate the appeal. Murphy, C.J., dissenting.

3. Where a justice has dismissed an action, a writ of mandamus will not lie to compel him to proceed and try the action although such dismissal was error.

4. A writ of certiorari will not lie where there is an appeal.

5. An appeal will lie from a judgment rendered in a justice's court on an order improperly dismissing the action. Especially is that the case where both issues of law and issues of fact had been made in the justice's court.

Application for writ of prohibition by the Nevada Central Railroad Company against the district court of Lander county to prohibit defendant from trying a certain case in which the petitioners were defendants, and which was, as alleged improperly appealed to the district court. Writ dismissed.

D. S Truman, for petitioner.

James F. Dennis, for respondent.

BIGELOW J.

In the action of J. F. Dennis v. The Nevada Central Railroad Company, pending in the justice's court of Austin township, Lander county, the justice, being of the opinion that he had lost jurisdiction of the case, by reason of having granted, although by consent of both parties, a continuance for more than 10 days without requiring the undertaking provided for in Gen. St. § 3565, dismissed it and rendered judgment against the plaintiff for costs. It is sufficient upon this point to say that this was error, because, when both parties consent to an adjournment of the trial, no undertaking is required. A motion by the plaintiff to retax the costs was overruled by the justice, and the plaintiff appealed to the district court of Lander county. The notice of appeal stated that the appeal was taken from the judgment, properly describing it, and then added: "This appeal is taken on the order dismissing the action on the motion of defendant that the said court had lost jurisdiction of the same, on questions of both law and fact. An appeal can only be taken in a justice's court from a final judgment, and, as this was properly done here, the words quoted should be treated as surplusage, and they do not invalidate the appeal.

In the district court a motion to dismiss the appeal was overruled, and the petitioner asks in this proceeding that that court be prohibited from trying the case upon the appeal. The application is based upon the ground that there can be no appeal from a case in a justice's court until it has been tried upon the merits; and it is said that, if the justice improperly dismissed the action, the plaintiff should apply for a writ of mandamus to compel him to go on and try it. But the justice having acted in the matter by dismissing the action, no matter how erroneous the order, mandamus will not lie to compel him to proceed with the trial. State v. Wright, 4 Nev. 119; Floral Springs Water Co. V. Rives, 14 Nev. 431.

It is also contended that the plaintiff's remedy is to apply for a writ of certiorari to annul the order of the justice dismissing the action. But, under our statute, certiorari will not lie where there is an appeal; so, if there is an appeal permitted in this case, certiorari would be no remedy. Conner v. Swift, 9 Nev. 39. To affirm one is to negative the other. In all the cases cited from California where the writ was issued to annul orders improperly dismissing actions or appeals, there could have been no appeal from the judgment of dismissal. Then, was an appeal authorized in this case? Gen. St.§ 3603, provides that any party dissatisfied with a judgment rendered in a justice's court may appeal therefrom to the district court of that county. No limitation is placed upon this right of appeal, and it cannot be denied that, under this section the right existed here. The only condition is that a judgment shall have been rendered with which the party is dissatisfied; and that was the case with the plaintiff here. That the dismissal of a case is a final judgment, from which an appeal will lie, has so often been decided that a citation of authorities seems almost superfluous. Zoller v. McDonald, 23 Cal. 136; Dowling v. Polack 18 Cal. 625; Bowie v. Kansas City, 51 Mo. 454; Gill v. Jones, 57 Miss. 367. But in section 3604, Gen. St., it is provided that upon the appeal the case shall be tried "anew;" and, upon the theory that this case was not tried in the justice's court, it is said that it cannot be tried anew; and, as that is the only method of disposing of an appeal, it follows that, notwithstanding the broad language of section 3603, there can be no appeal here. I am of the opinion, however, that no such narrow and technical construction should be placed upon this section. To do so is not only to override the language of the preceding section, but is to upset a whole harmonious system, by placing too much stress upon the strict literal meaning of the one word "anew," -a meaning that it is apparent the legislature never intended it to have. This, it seems to me, an examination of the whole statute makes clear. After granting, by section 3603, the unlimited right of appeal already mentioned, it, of course, became necessary to determine how the appeal should be disposed of in the district court. Should that court be given the power to affirm or modify the judgment, or, if errors were found, to reverse it for a new trial in the justice's court, or, without regard to whether errors had or had not been committed in the lower court, should it be tried anew in the district court? The latter course was decided upon. No matter how just the judgment of the justice may be, or how free from errors, the case is to be tried anew in the appellate court. It...